the legal community -- still the number of encrypted e-mails i get from lawyers is very small. the number of legal organizations who encrypt their websites who offer encrypted telephones services to their clients is very small land they don't do anything, failure to do so seems to be unethical so what we really need is the bar association, national association to put out statements saying leaders need to encrypt. lawyers need to use e-mail encryption, telephone encryption, and is moving in the right direction. the main problem is many of the tools we have are not very easy to use so text messages invoicing are idiot proof that this point and i am happy with the way things are going. it is a nightmare and sharing encrypted documents between

reporters is very difficult. >> very briefly i wanted to ask a question, the ed snowden disclosure for national security is one very small area journalists report all over the world, at minimum, companies, private firms outside the intelligence community they may not go to jail for disclosing this but they have a mortgage to pay and a family to feed. worst case scenario journalists -- i am lucky to live in a country where the worst happens, not saying it is a walk in the park, i get held in contempt. we are talking people dying and disappearing if this information is made out of sources of ours to disappear in the middle of the night because the question i have we talk about lawyers, from a legal perspective is what the surveillance needs for

attorney/client privilege and when the government does ims surveillance, how that is protected and that might work. >> depends on what mass surveillance you have in mind. that is a hard question to answer. on the journalism question there has been too much emphasis by the press on how victimized the press is by investigations, the press is very good at defending its interests, and leaking national security secrets to the press is a crime so naturally the government will investigate the leak and reporters on the an end of that leak creates -- the reporters getting close to the crime. it is the question, how does the government investigate those cases, that should not be a crime but if we accept that as the crime it should be a crime which is the only way to have a

classified system where we have some secrets that are classified which should be the case then naturally reporters are going to get close to that and there has been some miss coverage of investigations in which i guess it was the affidavit in which an ap reporter was described as somebody who committed an offense that got totally blown out of proportion. it was a phrase required under statutory authority in the privacy protection act. and the approval process to not mean the reporter was targeted. it meant there was a part of a checklist that had to be covered in a language that ended up in an affidavit which i am not convinced these are as severe problems as suggested. the attorney client privilege question depends on the nature of this mail. >> i have a slightly different view and i will be brief. we need to have an ironclad shields at the federal level and every level interview with a poster child for why just look

at the case, an excellent example, hardly the only one but my problem with making an argument so we need to have wide latitude essentially for prosecutors to go after folks in cases like this is the only reason we know unconstitutional surveillance has been conducted against each of us is because of ed snowden being willing to go to folks in the business the jack and the others are in. we need to find ironclad ways to make sure those journalists are untouchable when doing their reporting on this. that to me is the great vulnerability we have. >> to continue, i hope it will continue at lunch upstairs in our cafeteria. i hope you will blend us back here at 1:00 sharp. we will be joined by google chairman eric schmidt, a best

friend of mine. we have a really fantastic after that. is secrecy panel with the wall street journal. and of very special closing session you will kick yourself if you miss and after all that we will have instruction in privacy with a great series of tech experts who will walk you through how to use technologies. salinas from lunch. [applause] [inaudible conversations] >> more from the cato institute conference on surveillance. the general tells will for the

office of the director of national intelligence joins former nsa analyst discuss the surveillance oversight process. this is an hour and 15 minutes. >> welcome back. our first afternoon panel is going to export issues of secrecy and transparency. a central component of any liberal democracy is accountability of government through the most central checks. the abuse of government power. our assurance that the vast capabilities of the government to serve they are being used a legitimate purposes depends on our confidence in the mechanisms that are overssigned that are in place to monitor the use of these often extraordinarily secret programs and tools. of course the vital question is

how reliable and effective can that oversight be? do you need greater transparency not just to internal overseers but the public and the confidence that these great authorities are used and are responsible? everyone has autobiography packet. i don't want to spend too much time on introductions. the fantastic final day in journalism. final act of journalism. it will be up to her extraordinarily high standards. >> thank you for coming. we are a year-and-a-half or so into the post ed snowden era and seems like a good time to assess how the oversight of surveillance programs has or hasn't changed. the latest congressional effort to impose limits on surveillance

failed quite spectacularly on the senate floor last month and that is focusing on the question that i will return again this year that the provision of the patriot act that authorizes the business records to expire in june. how that will proceed in a republican congress is something we will certainly be eagerly watching in january and beyond. aside from the smaller modifications president obama made 11 months ago, where are we in monitoring these programs that continue but we don't know about? one sort of interesting things that i noted it is the most tangible change the government made is turning nsa surveillance on itself with insider threat

program given that we haven't seen the congressional action we were expecting. it is interesting that that is actually the biggest change so far. i think it is great time to take stock of the apparatus and is the ideologically diverse panel. you have there bios. i will keep it short. the general counsel for the director of national intelligence has become a government that the man about responding to critiques in reform proposals and overseeing the process of releasing top-secret documents in these matters. i and franklin is executive director of the privacy and civil liberties oversight board which was reinvigorated and given a clear role on the wake of the ed snowden disclosure. prior to joining the board she served more than eight years as senior counsel of the constitution project which is a nonprofit legal project. of former top official at the

national security agency, among his honor's ear and the agency's meritorious sarah palin surveillance on weapons systems. and the agency raised alarm bells about wasteful agency spending on collection programs that retailing. left in 2001 to work with former colleagues on a consulting basis addressing the data in issues and has since become a vocal advocate for government accountability particularly at nsa. and we advocate government transparency, focuses on reforms for the national classification system and preventing the use of classification to conceal government wrongdoing and secret interpretations of the law and last but not least also specializes in pushing government transparency, the direction of the federation of secrecy and his newsletter has become a resource for the latest developments on government

efforts to keep information under wraps. he initiated a successful challenge to the c i a proposal to destroy e-mails of most of their employees. with that i would like to kick off with some questions and we will go from there. the first thing most obvious is the current oversight structure and maybe we can get bob and kirk to weigh in on that. >> it is worth setting up the nature of the problem which of necessity you conduct intelligence activities in secret. if you are conducting them in the open you will save a lot of money because you need an intelligence community. and so the current bill structure was set up during congressional oversight was set up after the church and pike committee, the trade off that was made was there would be intelligence committees in both houses of congress that are by

and large with some exceptions much more nonpartisan or bipartisan than other committees and there is a statutory obligation by the intelligence committees to keep the committee, the intelligence community, to keep the committees informed of all intelligence activities. i can't speak for anything before lifetime of which began with the obama administration but we have religiously adhered to that. we're in the air hundreds of times i year, brief him on all the major programs. it is worth noting the surveillance activities that have been leaked were fully disclosed to the intelligence community. they knew all about them. that is the trade off we have made in congressional oversight. there is also a whole aspect of oversight within the executive branch that includes inspectors general, officers of the general counsel, when you are talking

about the department of justice played a substantial role and again you have a degree of supervision, and the documents that have come over the past year and half have dispelled the notion that it is just a rubber stamp. they are searching and seizing how they approach legal each use. i quarrel with you when you say the biggest change in the last year-and-a-half is the insider threat of the program partly because that is something that was before ed snowden and partly because i think the biggest change has been the intelligence community's attitude toward disclosure to the public. i said this before and my boss has said it. the leadership of the intelligence community has come to the conclusion that i think is absolutely correct, that we would have had less damage had we been more transparent about these activities.

it is my view that had we found a way for example to disclose to the public in advance that weaver interpreting section 215 to permit both elections and we had done that in our own terms it would be much less controversial than what it came out on the front page of the washington post. we have taken that lesson to heart. there has been a degree of disclosure about our activities. not only what has been leaked but voluntarily initiated that is absolutely unpr absolutely u is going to continue. we have an ongely ng program to declassify things. there are some difficult lines to draw. we could be much more transparent about the legal authority. and what the are actually dely . it needs to be protected.

and there has been damaged, communications we use to collect the we are not collecting. what the long-term impact of that is is too sg-n to tell. there is a genuine recognition to go forward, and if we don't have the trust of the people in the long run we won't be able to do our jobs. >> two different things. do you anticipate going forward, voluntary disclosure that is not already known. the legal justification for this. >> to the extent that we can do it without compromising the sources and methods and information we are collected, and the more granular you get the more difficult that becomes. >> is oversight adequate? >> i do. there is a difference be

doeen the adequacy of the process and concerns about the results. the intelligence communities and the judiciary and executive branch all knew about these proirams. the fact of the matter isn't the intelligence communities who are the designated overseers approve of these programs. the complaint is not that there wasn't adequate insight into the program but that people don't like the conclusion the oversight committee reached. that is a different concern from there is inadequate oversight. >> what is your take? as bob points out, there is the apparent difference with the oversight committees, what is that? e t> if you ask about oversight compared with 30 years ago, i would tell you it is virtually nonexistent. i is a fairly young analyst recall going to capitol hill with a very sensitive documents

in my hand, and reported data. what we typically call rre s da. i remember sharing it with the chief of the staff, and we had a relationship that is much more in the true nature of checks and balances, so when they asked to spend several millions or hundreds of millions of dollars, congress had a viable way of determining whether ora i don't get the sense that that is possible today partly because of the holding of sensitive information to certain members, we have seen the committees thekneelverma parts of them are not important to that process. since 9/11 we constrained to the oversight process from what it

used to be. and that is untrue assertions. we have a democracy to uphold and the constraints knowledge, too few people, we lose the very knowledge and capability to uphold the principles of democracy we stand for. i don't think surveillance is being checked upon in a truly effective way and what i mean by that is thea

nsa probable cause query's. you are doing this a hundred times a day. the issue is nsa can use that to

establish a profile. that is a good thing but why do you do to hundreds of millions of innocent people? that is a problem. that is where i have a problem. i do not want to hurt nsa. i served 30 years there. it is that needed capability. my goodness, we need to observe three legs of the government, the legislative process, the judiciary as it was always intended. we don't need to say we are in perpetual war and can never go back to democratic principles. we need to get away from fat. >> that is on the idea is that there's a lot of information limited to the leadership of the committee. i can only speak for what i have observed in the five years i have been on the job but that is really applied only for sensitive operations. before the rate, we did not get the entire committee to do that.

when you are talking programmatic things, the kinds of surveillance nsa does those are brief to the entire committee and in detail. >> you certainly watched the oversight process. do you feel like congress has a technical understanding to oversee something like the nsa program? >> it has that, the oversight process is broken in 17 ways. in response to the ed snowden disclosures which in effect we did a science experiment to test the oversight problem. the intelligence oversight committees were fully briefed on the programs that were disclosed by ed snowden. committees are not supposed to surf as a proxy for congress or the public as a whole. they are given access to things the rest of us are not allowed

to see. when ed snowden tip to that system over and made the information available to a broader cross section of congress and the public, the response shows committees were not serving as a proxy. there was a firestorm of opposition. and efforts to change the policy the legislative attempt to change failed, but it failed because we no longer live in a system where majority rules. they got 58 points. and they change policy it seems. the point is the oversight committees are not accurately representing the full spectrum

of congressional or -- public opinion. >> on the conservative side, for whatever reason, in the house, a strong libertarian caucus, the strongest voices against surveillance. there are zero members on the oversight committee and that shows the limits of having a select committee, the leadership members. >> members of the house intelligence committee quite on the libertarian side. i have been interrogating by them. i prefer not to identified -- i have been interrogated by them. i can assure you. >> how do you rate the adequacy of the current oversight mechanism? >> the oversight board is the new kid on the block in the

oversight arena. and openings that were newly invigorated or newly existing, the agency in its current independent form reinvigorated, no, integrated. we didn't exist. the board in its current form is an independent agency and came into existence in the fall of 2012, four board members were confirmed, the chairman was confirmed, started on the job before the ed snowden link. it was thrown into this arena and spent its first year with five board members and a couple of staff looking at the second 215 telephone records program as well as section 702 program which is referred to in the press as prison in that program and was able to do a deep dive

investigating both programs and providing of fresh independent look at those programs. we hope that will continue to be a productive role, part of the oversight of arena. we are situated differently than the intelligence committees in congress as part of the executive branch so some of those conversations can be easier in terms of the deliberative process privileges within the executive branch. so far so good. we are trying to establish those productive relationships as we move forward with these studies. we found all of the agency's that were operating the programs were very responsive to our requests. all five board members and staff are full be cleared to the top levels so we have full access across the information relevant to the program and at the end of the day the board came up differently on the two programs

with section 215, a majority of the board found the program was not properly authorized by the section 215 statute, recommended ending the program and with section 702 they reached a different conclusion, that program was in fact within the statutory authorization. different conclusions regarding the effectiveness and was not properly authorized, the majority view that it was not sufficiently and effective to justify the program. different conclusion with sections 702 where the board found it was an effective program. so we look forward to moving forward as an important part of the oversight realm. >> as you read the system that you are part of, how do you gauge the adequacy of it? >> i don't know that we are in a place to rate the overall oversight structure. i think it is important to have

these different roles as you look at it. intelligence community has a lot of operations, hard to have a window into everything that is going on. >> another key part of the accountability process is the notion of transparency, referring to the fairly large number of documents the government has put out in the wake of the ed snowden revelations. i wonder if you could guide us through your sense of the transparency in the process? >> right now transparency is a significant barrier to effective oversight. it impedes communication between the intelligence community and its oversight body between the oversight bodies and the public and the intelligence community

and the public. a few examples, lots of criticism in the senate intelligence committee on cia in derogations that were provided incorrect information. the department of justice and inspector general in the last month, several reports for declassification, in 2013, they were still not available. an oversight function of sharing information is been impeded. what we have said before, in retrospect we would all have been better off if the intelligence community had been

more forthcoming, and authorities and processes, and i don't think anybody would disagree with that. nobody says what ed snowden did, nobody said that was not legitimately classified under the executive order but met the criteria, but there is lots of early information that is, quote, probably classified that should not be public. the intelligence community, nobody has defined the good mechanism for distinguishing or disentangling what is legitimately classified under the terms of the executive order

from that information which should nevertheless be in the public domain. that is the major task that remains to be undertaken. >> there is no enforcement mechanism for classification. >> i want to pick up on what steve was articulating. declassification, public interest and the board in developing its report on the section 702 program have very positive experience in that regard. ..

and we reached out to the relevant agencies as we're required to do, who were the custodians of these classified documents and this classified information and what steve refers to as first of ever lateral request. usually they come from the public or come from the president but this was a fellow agency in the executive branch making a lateral request for declassification, recognizing that the documents were properly classified in the first place but now in the current state of affairs with the public debate going on there was public interest need to know with more information and where those lines need to be drawn and i

think the people that we worked with start the out a little bit suspicious and wary. they didn't know where this was coming from but over time put in a lot of effort and we were able to engage what i think was a very productive dialogue. a lot of people put in a lot of time to talk through if, what the board's request was. and the board didn't request that every detail of the program be declassified. there were certain operational details we fully recognize need to remain classified but try to provide a better picture and talking through with the representatives of those ages is where those things that you want to say that would reveal sources and methods and talking through why and what their concerns were and drafting something they would be comfortable with. at the end of the day with our report, the whole thing is 200 pages there is a 60 page approximatelies describing what

my colleague calls 100 newly-declassified facts and i think that was very a productive experience. how much of that is a model for the future will variry. we fully recognize a lost programs out there we'll not be able to have that much declassified. there will be much more sensitive. there will be a much more information that can not be legitimately be released but hopefully it is a model some senses can be declassified. one other point while i still have the floor, the board's enabling statute includes that we are supposed to inform the public on our reports to the greatest extent consistent with the protection of classified information. so we have that affirmative obligation to try to make our reports public while respecting that classified information. so really think through this where should that line be drawn in a way where that conversation

isn't necessarily always happening. >> so siobhan, i actually agree, surprisingly with what steve said. there is provision steve averted to in the information can be declassified the bade on determination the public interest of disclosure oh weighs the secrecy and that is the basis the dni ordered declassification portions of the senate intelligence committee report that were released but there is real practical problem here of resources. as sharon said declassification of their report required a lot of time by a lot of people. >> how long? >> what? >> how long? >> i can't tell you there were -- when i say i can't tell you it is because i don't know. >> i was wondering. >> i do. >> okay. >> intensive process about a month where we were back and forth in a room. >> but involved several different agencies whose

equities are involved. declassification is not easy. it is very resource intensive and we don't have a lot of resources to devote to it and to a great extent those resources are driven, are driven to respond to outside pressures. foia litigation, we have thousands of foia lawsuits pending and we have judicial deadlines on those and it really makes it hard to step back and say, what do we think as a, as a matter of good government and public interest what ought to be released because we just don't have the resources to do it. and it is something i feel very painful b i would love to step back and say, okay, here are all these things that we think need to be declassified. i can't find the people to do it. >> response to that? i think that when information, leaving aside, you know, the situation where something is properly classified, once something is not properly

classified, say something is classified to conceal violations of law or embarassment which terms of the executive order forbids, i don't think it should be understood as a bureaucratic problem if that stays classified and stays secret. we have a first amendment. the classification system is prior restraint on speech. yes, there is very compelling government interest, there needs to be some tailoring, someone has to check. the president does not have to have a secret exception. one of the things in the senate report we keep referring to show us that, is it properly classified? if it was you can properly classify evidence of crimes. >> there is a difference between classifying something for the purpose of covering up illegal activity and classifying for legitimate, not national security reasons that happens to involve illegal activity. in the time, i can only speak again from my own personal experience. i have not seen a single

instance in my personal experience of anything that has been classified for an improper purpose. there is no question that there is stuff that has is classified that could be embarrassing or, or, otherwise harmful if it came out but i have not seen it. >> kirk, in your experience, have you seen that? >> when you classify something at nsa, because of the amount of information and data that is being churned and reviewed for intelligence purposes, it is a pretty simple process believe it or not. your typical analyst learns the rules of the game and the rules are pretty general in terms of severity of damage to the country if anything is leaked or gets out in the public. so maybe one or two people are involved in classifying a report issued by nsa. but as bob litt has pointed out, to declassify it is almost an act of god and, it's a

difficult -- >> a whole lot of his minions. >> it is very, very difficult. going back for the moment on the issue of the adequacy of oversight. two things happened last night that hopefully all of you noticed in the heat of the moment to pass an omnibus bill. one new bit of legislation describing something called section 309 was introduced into the legislation that takes away due process from united states citizens under the guise of mass surveillance. the other thing that happened was that the constraints that the congress, the house in particular, had already put into place last summer to constrain

nsa were conveniently snatched out in the moments before vote. that, i think, serves to indicate that oversight is terribly, terribly broken. so i have no idea what the second thing you're referring to is. on the first thing -- >> none of us do. >> no, i just don't know what provision you're talking about. >> i think -- >> i can talk about section 309 which is actually not part of the appropriations bill. it is in the intelligence authorization bill and it absolutely does not do what people have said it does. it does not give any authority to the nsa to do anything. what it does in fact is impose restrictions on the, on surveillance. what it says is, when you collect information about americans, regardless of the authority you collect it under, whether on fisa or any other

authority, you muslim the retention of information about those people. so i don't know why people mr. misreading this as if it gives authority to nsa. it does not. >> i think issue is, so that it imposes if i'm referring to the correct position, i think it imposes minutization guidelines, across including 12.33. can be interpreted as ratifying 12.333 collection or interpreting standards which there are none. >> 12.33 collection has been existing for a long time. congress has been full i aware. this says if you're doing what you are already doing you have to have restrictions. >> my primary point, this will be debated no doubt, by wiser people than myself, why wait until the last moment in the heat of an omnibus bill to do this kind of thing? it is very disingenuous.

this is in the senate intelligence committee's version of the intelligence authorization bill. it was delated and passed out. it was not in the house bill and put in the conference consensus conference bill passed through. >> i want so go back to the early discussion about declassification. about challenges and time it takes. one of board's recommendations in its first report on section 215 was that going forward, now that we've had the some of this conversation about the importance of transparency and better understanding where the lines need to be drawn. when the fisa court decide a case involving legal issue or novel application of technology, that the judges can draft the opinion with an eye toward there being a declassified version.

they already started to do this, and started to do this before the board's report came out. if they sync going forward, this could be valuable to the public to see on this legal issue and draft it so that the specific facts and operational methods that need to remain classified are easily segregated and apportioned that can be blacked out. that will facilitate that process to proactively declassify those documents. >> i would just add, the intelligence authorization bill that decided, bob, also includes a provision calling on the dni to provide recommendations on how the declassification process could be improved. >> right. >> more money, more people. >> that is one answer. i think there has to be better answer than that. if you, if you follow the demand for declassification, there is a new issue almost every day. yesterday senator levin on the

senate floor said, there is cia letter about a, concerning a meeting in prague by mohammed atta. can we see it? can we see the underlying information? a perfectly reasonable request. very hard to apparently for the government to deal with. the day before there was a resolution introduced by senator udall saying, we want to see the records of cia covert action in indonesia associated with the coup there. there is increasing demand, non-frivolous requests. and the system, as it exists is incapable of accommodating or responding to those requests. whatever way of doing business is right now, it needs to be up greated and improved. -- upgraded and improved. >> i would like to opportunity to sit down and give you my

thoughts. >> i would like the opportunity to give you my thoughts. >> it's a deal. >> can i come? >> you're all invited. [laughing] >> i prefer perhaps a somewhat different format. >> i think the crucial step is to take the issue outside of the originating office or originating agency. if boy to the cia around ask the cia for a cia document, they go into a defensive crouch. they are protective. they, they, they're looking out for their own interests, understandably, that is their first priority. if the decision is taken out of cia or out of nsa or out of whatever the originating agency is and given to a body with different cross-section of interests, even though i'm

saying i should not be on it, somebody with a broader provision, broader perspective, broader understanding of what national interest might justify you're likely to get a different result that. would be useful step for requests of a certain magnitude or urgency or public interest. >> yeah. i think the justification in the executive order is that the original classifying authority has the greatest expertise. >> sorry? >> the executive order, it gives a lot of the authority to the original classification authority. that is who gets delegated to make the decision. >> yeah. director brennan if it is the cia. yes, there is expertise but there is also the highest, you know, the highest possibility of conflict of interest. and so, broadening it is really important for that reason. >> i want to circle back a little bit to a point that bob

and steve hit on when you talking about the kind of, this briefings to congress and sort of how that process goes. and i was wondering if katherine and bob ten us understand -- help us understand and frame the issue. when it comes to congressional oversight when we saw with the release of the snowden documents there were varying degrees of understanding in congress what nsa was doing. highest degrief understanding was in the intelligence committees and it sort of tapered off from there. and some sense certain programs congressional staff are not brought in until later on. often times they have the greatest expertise in helping lawmakers who have responsibility for many things, you know, to better understand particulars of an issue especially technical ones. maybe, katherine, if you can talk about what the issues are there when it comes to congressional oversight of secret things. this is sort of, you know, on

the assumption that yes, the intelligence committees by and large will get fair amount of information but specifically specific lawmakers but staffs of intelligence committees and other committees have equities there or expertise. >> okay. i will begin by giving the obama administration a compliment. i think that as the, bob said earlier, there are fewer programs that are kept from the full intelligence committee now than there were under the last administration i think. there are not quite true that the intelligence committee knew everything about the snowden disclosures. senator feinstein said she didn't know certain things about 12-333. senator wyden has gotten close but not gotten to the bottom of it. helped spark some form of senate intelligence investigation into

12-333 collection. senator wyden also had to push even answers privately on the number of back door searches under 702. the fbi still apparently doesn't collect that number for reasons i don't fully understand. but, by and large the members of the intelligence committee have the most information. they're is less information to members of outside committees. there is less information to staff so on a the question of staff as siobhan said, this is the supreme court decision in grevil versus united states. members congress can not function without staff. and intelligence matters so complex and technical they're sometimes expected to do so and it doesn't work. this is especially acute in the house i think. the both house and senate have a rule that personal office staff can not hold top secret sci

clearances. only committee staff can. that means there are members of house intelligence committee have no personal office staff to consult with on an issue and in practice members about congress really like to have their own staff and committee chairpersons often exert a high degree of control over the committee staff. and so, you know, if congressman schiff wants to get briefed on something he may have to go himself. >> he is on the committee. >> he is on the committee but he doesn't have a staffer who can get sci briefings. >> can i talk on that? i would say the bigger problem from what you, the rule you mentioned, that personal staff can not get highest level of clearances means that members of congress who don't sit on the intelligence committee, or some judiciary committee, also have certain number of cleared staff.

if you don't sit on one of those committees you will not have a staffer that directly has a relationship with you who is cleared to that highest level. and so this came up certainly with regard to the section 215 telephone records program where the intelligence committees were fully briefed as we understand it. judiciary committee, to some extent as well, but if you don't sit on one of those committees, you as member about congress you yourself would have to go in and get that information and when you are, and this goes back to the earlier conversation about where you draw the line what is public. as bob mentioned, director clapper now said we should have been more transparent about the scope of the 215 authority and what we were expecting it to do, what we are interpreting it to cover. if you could have a public debate, if you can have members about congress, all members of congress have that debate and have full information access to that information, you may need

to allow the staff in there and have a greater level of public transparency about the rules and then maybe some of the public details are, some of the operational details, non-public operational details would be confined to these people who are fully cleared within the intelligence committees. >> i actually don't have a lot of sympathy for the complaint that says members of congress really like to have their own personal staff. there are a lot of things i would like to have as well. there are 40 staff members on the senate intelligence committee. there are 30 staff members on the house intelligence committee. there are cleared staff members on judiciary and appropriations committee and armed services committee. there are an awful lot of staff members with clearances. on the 215 and the 702 programs we offered for these, before these statutes were reauthorized we offered briefings to all members where we would come in and question would fully explain the program. we had about eight house members

who showed up for the briefing and, and i agree this is important stuff and if members of congress can't make the time to come and learn about the intelligence activities, i guess i'm concerned about, to coin a phrased, half-assed oversight worse than not letting them in the door at all. you may understand by the tone of voice that something i'm really concerned about. >> no question of congress off the oversight committee, without staff and reading press and question, can make a lot of difference. there is congressman amosh not on the hp se, would never be allowed near hpse. >> showed up for the briefing we gave. >> cares bit so made the time to do it. >> so that, a some of it is will. but the numbers, bob just gave compare that to the-size of

congress and compare that to the size of intelligence community. they're tiny. >> that's true. >> want to hear everybody's recommendations and, just one eshoo just because it's a little bit newsy that came up in some of our conversations, i was sort of curious, what the panel thought of mark udall's sort of impassioned recommendation on wednesday to have the declassification of the inspector general's report on the, the allegations that the cia was improperly accessing senate files and finding of the ig that, some officers improperly accessed senate computers on this particular network having to do with the, investigation into the agency's interrogation and detention program? just sort of, we can go quickly down the line.

i'm sort of curious, what the view is of the advisability of this point of declassifying something like that, in the, in the pulling together actually a lot of themes because that would be perhaps an area where transparency would be leading to accountability but we also discussed how difficult it could be to declassify things so maybe just -- >> i naturally think it ought to be declassified. there may be privacy considerations of individuals that deserve to be protected but it is an issue of really constitutional significance. separation of powers. and is an example where the agency that has the most immediate interest, namely the cia, should not be the one making decision as to whether or what gets declassified. >> i think it should be declassified, shocking the you may find me, i didn't have time

to get some of senator udall's speech in the conference materials. you may find me handing it out in the halls earlier if i can copy, the sequel to senator feinstein's speech in march. and i think it is a lesson what happens when oversight takes place in the open and what happens when committees step back and let it occur behind closed doors. since senator feinstein's speech two things have changed. the department of justice has decided, it will not prosecute the staffers who wrote the torture report and the report will not be suppressed. so that, both of those are very important things and i wasn't sure either of them were going to happen at one point. so that is a huge relief. but as far as getting answers on what happened in march we're no further than we were and there is a passage of senator udall's speech where he says that -- >> we want to -- >> i'm not going to read. i'm not going to read.

basically he says that he describes getting stonewalled by the cia for nine months and i think that's going to keep happening unless there is either the, either that is released or, and that is only gets released if the public demands it. >> i agree. put sunshine on it. get it out there. let's find out what is going on. that is what transparency and what oversight is. >> i think there is real importance to oversight being able to be conducted independently without interference but i can't speak to this specific context at all. >> i will not talk about the specific document. i will make two points. generally speaking i favor of declassification and declass if iization of things that can be declassified and released. there is still spend pending a accountability board still being chaired by a member about senate intelligence committee and investigation by sergeant-at-arms in the senate what went on at the senate side of things. i think it is important to get

it all out. to the extent it can be declassified consistent with the privacy concerns that steve mentioned and released i generally favor that. >> there was at least the news report that the sergeant-at-arms investigation had ended or no. >> i'm sorry? >> there was a news report that the sergeant-at-arms investigation had ended. >> had ended? >> yeah. >> i would hope they release whatever their findings are as well. >> i want to kick it to q&a, because there was earlier talk of recommendations if there are any other sort of recommendations for improvements? >> i suspect steve has more but we can talk about those off-line. it would use up the rest of this panel and the rest of the day. >> i would just say that i think there's benefit in establishing as many points of contact as possible among the different parties that are concerned here. the press, the public, the congressional committees which

are not represented on this panel, the executive branch. you know, bob litt has other things to do, did not need to be here. i would like to express appreciation. i see him or hear him or you know, see him debating in public much more frequently than any of his counterparts or interlocutors than other branches of government. i would like to express appreciation for that. i think it speaks well of him and his agency and it helps clarify some of the issues or at least the points of disagreement. i think we need more exchange and more interchange. >> and i will simply say in the same vein that we have an annual conference, lawyers across the intelligence community each year, and we invited steve to be one of our keynote speakers last year. i think he was well-received. he did not hold anything back but i think it is important for the lawyers in the community to hear that perspective.

>> let's get to q&a for a little bit. >> oh. >> steve winters, local researcher. i'm pretty sure i have my memory correct here but about a year ago congressman amosh gave a talk here right at cato and outlined the extreme difficulty he found in getting to these meetings that were described where he could find the information which was legally required to be available to him. it clearly was a case where he said every effort was made to schedule it at inconvenient times to do this, not inform congressman. i throw that out. check with him on that. in terms of the expert, you know people with a security, whatever clearance assistance to congressman, not the staff people but you're talking about their own staff, personal staff, just interesting story from

bruce schneider. bruce schneider, the security expert, very well-known, was given access to some of the undisclosed snowden papers for a certain period of time and there were requests by some members of congress for bruce schneider to come and brief them on the details of some of these programs and the whole thing turned out to be impossible to do because, you know, the security clearances didn't work out right even though the point is he had the information that congress is trying to find it out. presumably if they have had a staff member with right security clearances he could have briefed that person. >> okay. was there a question? >> the question was, it is same issue that comes up with foia, there is a lot of stonewalling. so what do you really propose to do about this in particular because you mentioned a mosh. -- amosh.

>> i'm kind of stymied by the question, go ahead. >> okay. so i'm not a hill person by any means but i did do a short fellowship in a congressional office and one of the things i learned there, just how limited member time is and how the breadth of issues that they deal with. i specialized in certain issues for 10 years and suddenly i had to learn everything. that is as a staffer. when there is trade agreement that is hundreds of pages long and only way a staff member can read it, himself is read the 800 page document and that doesn't work and he might not be able to discuss it with staff either. so i really think staff is essential. >> this is mainly a question for bob.

a very, very friendly question. of the 70 staff members, i wonder how many have a technical background. there has been proposed to allow the fisa occur has a permanent staff of lawyers who understand intelligence law. my understanding that the staff if you read declassified fisa opinions it is clear this stuff is really, really complicated technically and at some point the fisa staff didn't understand how some of the programs are being implemented. would you support a special advocate that was technical? would you support the fisa court itself employing full time technologists? do you think the senate and house intelligence committees should have either some or more technical staff who can advise them? i also welcome thoughts of others on the panel. >> i have no idea what the technical background of people on the staff is. i know there are some people who

seem to have some technical expertise but on the congressional staff i don't know the answer to that. on the fisa court, the usa freedom act which as you know we did support contained a provision to allow the fisa court to appoint experts, technical experts to assist them in particular cases and think that is generally a good idea. i wish the usa freedom act had passed. we'll have to see what happens in the next congress. >> so, oversight board also made recommendations along those lines including a specialized kit and court should turn to existing authorities. we understand they don't need any legislation enacted to do this to call on outside technical experts on their issues i imagine with them getting clearances. they would have to make steps to make that happen but that is something certainly the board supported as well. >> hi, marcy wheeler. i'm -- >> did i convince you on 309?

>> i can see both sides of the issue. >> okay. >> but i think -- >> that's an improvement. >> if odni had not spent so much time making less than credible arguments on ratification of section 215 it wouldn't be such a concern. >> we can agree to disagree on that. >> i want to know if you have any special insight about fbi oversights? because i think i have concerns about nsa. that's where we've all been focusing a year-and-a-half but fbi orders of magnitude are worse. steve mentioned the i.t. reports and one happened to be 215 report which didn't come out before usa freedom voted on. fbi obstinantly refuses to tag the source of data some which comes from nsa which nsa had to do since 2009. the same things nsa is required to do just for spying fbi is not

required to do yet they're the ones throwing people in jail so. >> i mean we made, as a nation, a policy choice after 9/11. there was a lot of discussion about should we set up a separate domestic intelligence agency? and the choice was made, no, we'll keep it in the fbi. and that necessarily means we've got an agency that does both intelligence and law enforcement and that creates a whole lot of complications particularly in an environment where every commission that has looked at every terrorist attack has said, we need to insure there is greater flow of information back and forth. so i'm not really in a position, i don't have that much, because fbi is part of the department of justice, i don't have the same visibility into oversight there i do with respect to the nsa but the problems are much more complicated because of the dual functions of the fbi.

>> thank you. bill of rights defense commit team i have a question for mr. litt. so last year, your boss, in an exchange with senator wyden, did intentionally, at least obfuscate a question he later being acknowledged in writing was quote, clearly erroneous. the question i have for you is, what would you say to millions of americans around the country concerned with overpolicing and their exposure to hyper vigilant justice severe that unarmed people are being murdered in the streets with impunity, while officials paid in taxpayer dollars commit clear crimes? whether it is your boss lying to congress or whether cia hacking senate. when there is impunity for espionage operations and lying to the people's representatives without legal consequence, what is your message to communities of color that are overpoliced? >> so i'm not going to talk about communities of color. i do know something about director clapper. i to don't know if you have ad

chance to i wrote to the "new york times" and about this, iterly wrong to say he lied. a famous quote from justice oliver wendell holmes, a dog knows the difference being tripped and kicked over. the point that lying means you're saying a conscious falsehood intentionally. i was with the dni around i was with him both, before, during and after that, and i can tell you he made a mistake and he acknowledged making a mistake because he was at a hearing, he, i can't hear what you're saying. >> [inaudible] >> if it had taken revelation of classified information to yield -- >> he, the question did he do it in public before? did he correct it in public before snowden disclosures and he answer is he didn't. maybe he got bad advice from his lawyer on this but we talked about this immediately after the hearing because we went to him and we said, you know that is not right because it is 215 program. which he had not focused on if.

you read his answer you will see he is clearly thinking of 702 program. that is clear from what he said. we talked about can we correct this or not and the problem was, and i had conversation with senator wyden's staffer was the to collect the on public record we essentially would have to reveal a program that was still classified. it is a, wrong, and b, kind of annoying that people continue to repeat this statement that he lied because he didn't. so to go on to your question i would say that the difference between this and other things is that there was not a crime committed here. >> in retrospect do you think it should have been handled differently. >> as i say, he may have gotten bad advice from his lawyer. >> in retrospect what would have been the right way to handle it. >> what would be right way to do to send a classified letter to the committee immediately thereafter but i misspoke and i can't reveal on public record. one of the things i regret in

five 1/2 years on the job i did not advise the dni to do that. >> in a situation like that, i think that in addition to a, if there is public testimony, there should have been at least some public marker that there is a classified addendum to some testimony in that hearing. otherwise the public is still left with actively misleading impression. >> problem is there shouldn't be questions asked about classified programs in public hearings. >> senator byrd agrees with you there so you're probably okay. yeah. >> thank you. i'm with the american library association. great panel. mr. litt, i appreciated your comment a couple moments ago that you thought that additional transparency and additional expertise being provided at the fisa court was important. may i hope that you feel equally strongly that it is important for the fisa court to have the availability of special

advocates. that was a provision in the very late-stages of the usa freedom act negotiation that uncomfortable rumors indicated might get traded away and it would be helpful to be perfectly blunt in the coming debate to have your endorsement of the special advocate as important to civil liberties. >> so two things. i think actually the house bill also had a provision for special advocates. it just had a sort of different trigger threshold. i would say that my endorsement is probably considerably less endorsement the fact that the president of the united states has endorsed it. so i don't think there was any likelihood it would be traded kay away and i don't think it will be traded at way at least by the administration. i have no idea frankly what will happen to this bill in the next congress. there may be somebody sitting a couple of rows behind you that has better knowledge of that than i do. we would, from my perspective i would like to see that bill introduced and passed. >> [inaudible]

>> the bill as a whole, including that provision. >> yellow shirt. >> stand for democracy in technology. want to follow up the comment about the u.s. a freedom act. while many provisions changing the fisa court changing section 215 require action by congress other provisions, notably, government transparency requirements and permitted company reporting could be enacted by the administration which as she said has endorsed bill today. i'm wondering do you think that the administration should engage in any thought to enacting those provisions on its own right now as opposed to waiting for congressional action? >> so i guess i always feel uncomfortable talking about what the administration may or may not be considering. i kind of tend to think that

things that are being considered should be kept under wraps until a decision is made. >> hi. i'd like to ask if we actually trust our national security information with the israelis and the british and yet we don't allow tenure to political science in phd and philosophy, how do we decipher that? i don't get it. how would a person in teaching in a u.s. institution pot be trusted more than an u.s. or british or israeli age sent. >> assuming that question is directed at me i don't know enough about the fact you're talking about to offer an opinion. >> gentleman in the back.

>> thanks i'm dan 'em shuman with crew. >> speak a little louder. >> sure. i'm daniel shuman with crew. question to mr. litt and other members of the panel. just a couple days ago we had major speeches by the chairman and former chairman of the intelligence committee where they raise ad number of concerns in context with the torture report with the cia they said for example, that the cia provided extensive amounts of inaccurate information and operation of the program and effectiveness to the white house, doj, congress, inspector general, media and american public. there were -- that was by senator feinstein. senator rockefeller who is the former chair said the study is the, is also the story of the breakdown in our system of governance that allows the country to deviate in such a significant and horrific way.

one of this was through the active subversion of meaningful congressional oversight. this is not an activist saying this. this is the former chair of the senate intelligence committee who then went on to say it es clear that the briefings you referred to earlier that were not meant to answer any questions but were intended only to provide cover to the administration, to the cia and more the committee dug, the more the committee found and results uncovered were both shocking and deeply troubling. of course these statements just, were made in the context of the torture report. but of course you know, it could reasonably infer this could apply to other matters such as surveillance. would you address questions of credibility for the cia and intelligence community particularly when you chairman, current and former of the intelligence committees saving themselves they find the cia to be less than forthcoming, less than credible and misleading to themselves and overseers within the executive branch?

>> i guess i would refer you to director brennan's remarks yesterday and i would rest on what director brennan said in that regard. >> i would like to add that mayed of course -- i understand of course where the question is coming from but i would be reluctant to paint the intelligence oversight committees sass, as either heroes or victims. i think they have a lot to answer for themselves that they have not yet attempted to address. they are not, you know, passive bystanders. they're the ones writing the checks for where we've been for the last dozen years and, there hasn't been any kind of exercise in self-criticism or self-awareness about where their own oversight fell short. and i think that's a serious defect on their part. including in the torture report. by all means attack the cia but why not ask you know, where were

we? why didn't we do a better job and if we were misled, why weren't we in a better position to compensate for that and, exercise more leadership? on torture, on surveillance on all kinds of issues. >> yeah. in answer to that i think they did get really inaccurate briefings and they did get shut out. the, my main criticism of intelligence oversight in that period is that this was actually starting to come out into the press, you know, yes, senator feinstein didn't get brief on cia program until, you know, i think a few hours -- a few hours before president bush disclosed it. but i knew bit. you just had to read the newspapers. senator rockefeller did try to investigate. i don't think he tried, i don't think he pursued it as strongly as he could but he did ask to investigate and chair of the

senate intelligence committee at time, pat roberts, republican, shut it down. and you know, accused rockefeller being obsessed with attacking our intelligence personnel. which i think goes to show the intelligence community, intelligence commit committee contains mult stupids. it contains, ron wyden a mark udall a richard burr and saxby chambliss. there is wide leadership changes. if you ask individual members of the committees and individual members of congress to ask for oversight because there is so much variation you don't want to it invest in one person. for oversight. >> time for one more question. >> thanks, i'm with the "washington post." not to gang on you, bob -- >> i knew what i was getting into. >> thanks.

about section 215 bulk collection and president obama in his january speech made clear that his preference would be to have the government end the bulk collection of phone metadata and he asked congress to work with him on it. so far, almost a year later, still no progress so what obstacles are there to the administration moving on its own administratively to end that nsa collection of phone metadata now on its own? i know it would be preferrable to have that enshrined in legislation but why can't you move now to do it and hopefully congress will follow suit? what obstacles are there practically? >> i think if you go back to look what the president said he said he would like to end the collection, the bulk collection and replace it with something that provides the same operational utility without having the bulk collection. the problem without legislative reform we can not do something that creates the same

operational utility. >> what -- >> well, if you look at provisions of the usa freedom act and what it requires we can't do that without legislation as it currently exists. and so, if, if congress, i mean, i promise you that the president wants to stop this but he also don't want to deprive the intelligence community of the capability. >> are you referring to the capability to do contact chaining or to hops and something that you need to mandate by law on the companies? >> there are a variety of things that need to be done in the legislation and that were done in the legislation of the we spent a lot of time working both with the congress and frankly with privacy and civil liberties groups and so on so we got, we ended up in a place, where assuming that the telephone companies continue their current practices with retaining data we would replicate e kate of the operation of the utility but wee

couldn't do it without a bill. >> i think our time -- >> i want to comment. that sound very foreign to me. again, i worked as an analyst for over 30 years and just before we left nsa, and i am talking about bill, myself and a few others made some huge technology breakthroughs that did not require special legislation to put into effect but we were swept aside by money interests, faulty thinking about what a proper analysis business process is. and i'm telling you, there is nothing preventing the government from asking us, who know how to do this, and safeguard privacy and catch bad guys, in big data from inviting us into a conversation and i will tell you, we've never been asked, not by congress, not by the executive, no one. >> the problems are --

>> all i want to say. >> problems are not technical. >> they are partially technical. don't leave it to a lawyer to tell you otherwise. >> i'm afraid, this is one i hope you continue later over a couple of beers. i hope you join me in thanking our panel. [applause] thank bob for coming and letting us throw tomatoes at him for an hour. [applause] and, for siobhan for her final stellar act of journalism. [applause] >> today, a forum on u.s. reflations -- relations with china and south korea. we'll be live from the center for east asia policy studies at the brookings institution starting at 9:00 a.m. eastern on our companion network c-span3.

>> senator saxby chambliss of georgia is retiring from the u.s. senate after serving two terms. senate republican leader mitch mcconnell paid tribute to senator chambliss on the senate floor. here's a look. >> mr. president? >> republicantn leader. >> i'd like to say a few words about my friend and colleague senator saxby chambliss. saxby, ase we all know, is the ultimate southern gentleman. he is a man of his word. he's blessed with the charm and the drawl only a georgian could possess and he's far, far to modest. he shouldn't be. he has got a lot to be proud of as he looks back at a storied career here in congress. we're talking about oneon of our nation's top experts on intelligence and national

security. we're talkingse about a standout champion for the men and women of our military. we're also talking about a senator who became a chair of the agriculture committee just two years into his first term. that is really quite an accomplishment. once you get to know sachs by, it isn't all -- saxby, it isn't all that surprising. before he came to congress, saxby was a small town ag lawyer. he still lives in a rural area. a peanut and cotton-farming region far removed from the bright lights of atlanta. saxby's got a feel for the issues that could only be acquired from actual on the ground experience. he understands the real world impactd of what we discuss here in washington. and he cares. on top of that, he has got the

discipline and work ethic of a minister's son which makes sense because he is one. saxby is usually the first guy raise hess hand when there an assignment no one else wants. that is what you saw for him on the "gang of six," a politically difficult and work-intensive committee if there ever was one. but saxby came here to get things done, not to posture. he takes on projects with the kind of drive and courage you don't often see. how courageous is saxby? well, he accepted a an invitation to go quail hunting with vice president cheney and he lived to tell the tale. senior senator from south carolina remembers the trip very well. he had to be persuaded by saxby

to come. he still suspects that saxby's real motive was to give cheney a second target. it wasn't the only time saxby cheated death with the vice president. lindsey recalls a meeting in baghdad with saxby, joe biden and the iraqi prime minister. afterward they board ad plane and came under fire. here's what saxby said. i guess the meeting didn't go that well. so saxby's a comedian but he is also courageous. he is also persuasive. he is really good at getting his way. it is kind of what you would expect from a former door-to-door fruitcake salesman. i mean after hawking loaves of spiced dough, there is not much saxby can't sell at this point. we know he was persuasive enough to convince julianne to marry

him. saxby and julianne met at the university of georgia. she was a sigma key pledge class sweetheart and soon became saxby's sweetheart. the chamblisss have been inseparable ever since. now just in case saxby ever becomes his own category on "jeopardy," herere is an interesting piece of trivia. the president of the same pledge class became saxby's democratic challenger in 2008. the two b fraternity brothers ae still friendly and here is how this gentleman remembered saxby from college. said he looked old. well julianne fell for him anyway. it is a good thing she did. this former school teacher is better than anyone at keeping him centered. she even taught students who would go on to serve on saxby's staff. it is really quite a

partnership. saxby said the most significant moment ofis his life is when he met julianne. and that really something when you consider how much he loves golf. last year saxby sank a hole-in-one squaring off the against the leader of the free world. that is the president of the united states. he got a signed flag to prove it. but golf is more than just a hobby for saxby. it is a way to get things done. more than most people around here he understands the value of relationships. he is good at whipping votes and picking up intel from both sides of the capitol. hehe works across the aisle ande is unafraid to stand up when something needs to be said. that's the thing about saxby. he s doesn't say a lot but whene does, you l know it is significant. you know that there is a lot of careful thought behind it. saxby's aio serious ledge who

approaches his role as vice chairman of the intelligence committee in that frame. saxby learns things on the committee that would keep anyone up at night. it's a grave responsibility but saxby's perfectly suited to it. he is always stood proudly in defense of our nation. we're going to miss his sharp wit, his integrity, and his judgment. i know saxby's staff is going to miss him too. some ofmi them have been with hm since his days in the house. well the senate's loss is the chambliss family's gain. i know saxby is looking forward to spending more time with julianne. i know he can't wait to strayed, the title of senator for a new one, big daddy. it is what his grandkids call him. he can't wait to see more of them. they're the reason he works so hard here, to build a better future for them, for the next

generation. saxby will have plenty much stories to share when leaves, like when they hit that hole-in-one. when he threw out the first pitch for the braves, and when he made the cover, listen to this, the cover of peanut patriot magazine. so saxby's obviously had a long and interesting career. he deserves some time to focus on his family. we thank him for his dedication this body and the people he and we send him every wish for retirement filled with joy and withnd happiness. mr. president, i yield the floor. >> the senate about to gavel in this morning, continuing consideration of executive and judicial nominations by president obama. expect to see votes throughout the day today on sara soldana to head up immigrations and customs enforcement under homeland

security and tony blanken to serve as deputy secretary of state. two bills remain on the agenda, extending expiring tax breaks and renewing terrorism risk insurance programs. live to the floor of the senate here on c-span2. the president pro tempore: the senate will come to order. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. o god of wisdom and order, who filled the universe with the mysteries of your power,

sustain our lawmakers with the knowledge of your mercy and providence. may they always look to you, the architect of destinies, for guidance in the precarious journey of defending freedom. help them to grow in grace and in a knowledge of your purposes. sustain them and their loved ones with your everlasting arms. may your hand lead our senators and your right hand protect them. we pray in your mighty name. amen.

the president pro tempore: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the president pro tempore: the majority leader. mr. reid: calendar number 627, which is h.r. 5771, it's the tax extender legislation. the president pro tempore: the clerk will report the motion. the clerk: motion to proceed to calendar number 627, h.r. 5771, an act to amend the internal revenue code of 1986, and so forth and for other purposes. mr. reid: mr. president, following my remarks and those of the republican leader, the senate will resume executive session and vote on confirmation of santos and rose nominations. those will be done by voice. following disposition of the nominations, there will be up to three hours for debate. it will be equally divided and

controlled between the two leaders or their designees in relation to the saldana nomination. the time from 2:15 until 2:30 will be equally divided and controlled in the usual form, followed by two roll call votes on cloture and the confirmation of the saldana nomination. there will be our usual party caucuses today at noon. roll call votes will occur for sure this evening at 6:00. the president pro tempore: under the previous order, the leadership time is reserved and under the previous order, the senate will resume executive session to consider the following nominations which the clerk will report. the clerk: nominations, defense nuclear facility safety board, daniel j. santos of virginia to be a member. department of state, frank a. rose of massachusetts to be an assistant secretary.

mr. reid: mr. president, i would ask the call -- the chair to begin the calling of a quorum. the president pro tempore: the clerk will call the roll. quorum call: mr. reid: mr. president? i ask unanimous consent the calling of the quorum be terminated. the presiding officer: without objection. if there is no further debate on the santos nomination, all those in favor say aye. all those opposed say no. the ayes appear to have it. the ayes do have it. the nomination is confirmed. if there is no further debate on

the rose nomination, all those in favor say aye. all those opposed say no. the ayes appear to have it. the ayes do have it. the nomination is confirmed. under the previous order, the motions to reconsider -- under the previous order, the motions are considered made and laid upon the table, and the senate -- and the president will be immediately notified of the senate's action. under the previous order, there are three hours of debate equally divided in the usual form on the motion to invoke cloture on the saldana nomination. mr. reid: i would note the absence of a quorum, mr. president. the presiding officer: the clerk will call the roll. quorum call: mr. reid: mr. president?

the presiding officer: the majority leader. mr. reid: i ask consent that the calling of the quorum be terminated. the presiding officer: without objection. mr. reid: mr. president, it would probably be appropriate that i suggest the absence of a quorum, but i ask that the time be divided equally. the presiding officer: without objection. mr. reid: and this would also be during all quorum calls today because there will be several of them, that the time will be divided equally on the saldana matter. the presiding officer: without objection. the clerk will call the roll. quorum call:

quorum call:

mr. cornyn: mr. president? the presiding officer: the republican whip. mr. cornyn: mr. president, are we in a quorum call? the presiding officer: we are. mr. cornyn: i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. cornyn: mr. president, more than three months ago, i was proud to introduce a fellow texan, sarah saldana to the security and government affairs committee in connection with her nomination to be the top immigration enforcement official, a position of profound importance to our country and particularly to texas, being a border state. s this saldana has an amazing story. she was bench in corpus christi, texas and became the first latina united states attorney in texas history and only the second woman to hold that in the 135-year history of the northern district of texas that includes the dallas-fort

worth metroplex and stretches across 95,000 miles. i along with former senator kay bailey hutchinson was proud to support her nomination for that important job. in her role as united states attorney and previously as a line prosecutor, sarah saldana has fought public corruption. she's fought organized crime, sex traffickers and other dangerous criminals. she's also prosecuted numerous high profile public construction cases including the very publicized corruption trial that resulted in the ickes of the former dallas mayor pro tem, don hill, and the ongoing case against dallas county commissioner john wylie price, both members of her political party which put her in some disfavor, you may imagine, in democratic political circles. but something which demonstrated to me that she was a person of courage and conviction and she

believed in enforcing the law beyond just purely deferring to personal political interests. so throughout her career she's developed an outstanding reputation and based on her qualifications alone, we would be hard pressed to find a person better suited for the job at immigration and customs enforcement than sarah saldana. unfortunately, the president changed everything this last november by his executive order order, executive actions on immigration. to be clear, i've said this before on the floor but i'll just repeat, i believe the president's actions are beyond his constitutional authority and are a reckless political stunt. here are the sorts of things that the president's claiming to do. the department of homeland security has issued a series of directives pursuant to the president's instruction on

november 21 doing everything from repealing the secure communities program by which local law enforcement cooperates with immigration and customs enforcement and when a person is arrested and who also is in the country illegally, they are detained by local law enforcement even though they've served their time or otherwise subject to release so that i.c.e. can come pick them up returned them to their country of origin. the president's executive action and the department of homeland security directives pursuant to that eliminate the secure communities program. it also purports to prioritize immigration enforcement. according to three priorities. the problem are these add even more confusion to what is already an dine cipherrable and confusing mess, and it also puts to the lowest priority

people who have been convicted of crimes like child abuse, stalking, theft, some child pornography offenses, possession, distribution of alcohol to minors, hit and run, including some hate crimes, property destruction, false impromment and the like. in other words, the president's priorities for immigration enforcement really represent a wholesale change in the law or if they were actually authorized. and until they're set aside by a court or congress to repeal them, which would require a presidential signature, they are the standing requirement for any director of are immigrations and customs enforcement. well, the president is also purported to have the authority to issue work permits to people

in the country illegally, millions of them. while i don't believe our country would ever engage in mass deportation, the fact that the president has usurped the authority of congress and purports to take on the authority to issue work permits to people illegally in the country to me is mind-boggling. well, this is the situation into which the president has put a good and decent person like sarah saldana. the president has put the next director of immigration and customs enforcement in an untenable position. when confirmed, she will be the principal enforcer of our immigration laws, and, unfortunately, she now claims that the president was operating within his legal authority to issue this executive action. i say that because several senators on the senate judiciary committee issued what's known as

questions, win questions to the committee -- written questions to the nominee about this executive action and it makes clear in her responses that ms. saldana has wholeheartedly embraced the president's executive action and claims that it is within his authority. and if you think about it, a presidential nominee has two choices. they can either say, well, i disagree with what the president has done and so i will refuse to serve or if they're already confirmed i'm going to resign my position, or they can embrace the president's policies because the president is the one who makes those policies. well, it's clearly ms. saldana has embraced the president's policies which as i said earlier, i believe are unconstitutional. i believe that we should be deeply concerned about the damage that the president's executive actions will do to our already broken immigration system because they reinforce

the dangerous message that the president is already sending to the world that our laws against illegal immigration will not be enforced. this is an invitation to lawlessness and it will make it much more likely that we will experience further humanitarian crises and surge of illegal immigration such as we saw last spring. and which we've seen this year with more than 60,000 unaccompanied children coming from central america through mexico to our southern border. so this is a green light the president's policies, and, unfortunately, ms. saldana has embraced those policies. i believe that if the recent election was a mandate for us to work together on bipartisan solutions to our country's biggest challenges, but apparently the president didn't get the memo. i was actually at a lunch at the white house with other leaders of both parties across the

capitol where speaker boehner, the incoming majority leader, and i, the current majority leader in the house, asked the president please don't do this. don't poison the well, give us a chance to do our job as the new majority in the house and the senate and try to pass consensus immigration reform bills and put them on your desk. the president ignored that. so the president chose to poison the well and to make it harder for us to do what we know we all have to do and that is to fix our broken immigration system to the best of our ability. but the president's reckless executive actions have done further damage. they are deeply unfair to people who have been waiting patiently in line according to the written immigration laws. the people who have been playing by the rules.

to allow millions of people to simply jump ahead of those people who have been waiting patiently in line and playing by the rules is profoundly unfair. and at a time when our economy is starting to recover from the financial crisis in 2008 and the policies that have intervened, we know that there is potential harm to hardworking middle-class families who are already living on stagnant wages and a rising cost of living to have millions of more people eligible for work permits under the president's purported authority in these executive actions. we ought to be careful about that. we ought to be deliberative about that and we ought to make sure we're doing the sorts of things that will protect, not harm, hardworking middle-class families. but the president has ignored all of that and and just done it his way.

well, some pundits have suggested that perhaps the president's real goal was to provoke republicans to taking the bait and descending into further dysfunction. well, if i heard one fling my constituents and people as i campaigned for reelection in texas, it is people actually want us to work together. they want this place to function. and in many instances, they don't care so much about what we do, just as long as we try to do something to work together. of course they care what we do and we all have our ideas about what that should be but there's a lot of middle ground where we can work together and solve some of these problems. but we're not going to take the bait if that's what the president's intention was, and we're not going to descend into even more dysfunction. that would be a a repudiation of the message and the mandate that the voters sent to us on november 4. so we're going to plow ahead and

when the new majority takes place on january 6, working with our colleagues in the house, working with our colleagues across the aisle, we're going to try to find places where we can pass bipartisan immigration legislation, not in a comprehensive fashion but in a step-by-step fashion to try to make some progress to improve our broken immigration system. but the thing i'm most concerned about is the precedent that the president's actions would set for our system of government. what are future presidents take upon themselves the claimed authority to issue other executive actions that ignore the separation of powers and the allocation of responsibility given to to the different branches of government under our constitution? it's a dangerous precedent. and if the president cannot be trusted to enforce the laws passed by the people's elected

representatives, then self-governance is an illusion. this is very dangerous. the american people should never stand for rule by executive fiat and they should demand that the rule of law be enforwards under our constitution. the president's frustration with the republican thousands is no justification for doing this. he needs to give us an opportunity to do our job, and he needs to join us at the negotiating table to make progress on our broken immigration system. so although i admire ms. saldana i fear she will be tasked with carrying out the implement of the president's unconstitutional executive actions. refusing to enforce our immigration laws, and, unfortunately, when given the chance to address the constitutionality of these actions to the judiciary committee, these fears were not

alleviated. members of the committee were denied a chance to ask her questions during an open confirmation hearing, something that previous nominees for this position have undergone. as a matter of fact, senator grassley, the ranking republican on the immigration -- on the judiciary committee and i invited ms. saldana to appear at an informal question-and-answer question since the chairman of the judiciary committee denied us an opportunity to have a formal hearing just to answer our questions and clarify her position, the positions she took in the written answers to the questions to the record which i referred to earlier. i don't know whether she got bad advice or whether she herself decided that it would be a futile effort, but she decided not to appear for that informer give-and-take. well, maybe it would have helped her clarify her answers to the questionst