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>> good morning and welcome to the cato institute. my name is julian sanchez, i'm a senior fellow here and i'm grateful to everyone has come out bright and early to the auditorium at cato for our 2019 surveillance conference. we've been doing this for some five years now. when we launched this in the aftermath of disclosures about both a fake election by former contractor snowden, the nsa itself was a fairly obscure agency unfan with most americans and as we kick off our 2019 conference, we find that now even intelligence oversight is itself very much in public headlines. we have an impeachment

proceeding kicked off in significant part by reports from the -- from the intelligence community's inspector general. we have forth coming next week a breathlessly awaited report on allegations of misuse of the foreign intelligence surveillance act during the 2016 presidential campaign. we have proceedings aired, going to be from the house intelligence committee. so even intelligence overseers now are at the center of our political discourse in the way the intelligence agencies themselves began to be earlier in this cycle, in the way that was really unprecedented since the 1970's. so, we have a special focus this year on not just the intelligence agencies itself, but also the mechanisms in place to oversee them. one of the kind of classic

problems of intelligence and of surveillance in a free society is how to balance the need for operations that are inherently secret, surveillance, that is done publicly in a sense, definitionally not suffe surveillance. and how do you render those with that power accountable to the public, through democratic mechanisms, given the unfortunate history around the world, but certainly in our country as well of secret surveillance power being abused for political purposes. so we have a program today that includes a discussion with one of the most important bodies doing that oversight, the privacy and civil liberties for this afternoon. we'll have discussions on the renewed war on strong

encryption, one the mechanisms that acts to check large scale collection. we're going to example later this morning some of what we've learned about compliance issues for misuses of large scale surveillance authorities under authorities such as fisa 702 and 215 and how the intelligence community is seeking to address those and how effective those corrective mechanisms have been. i think to start off appropriately, we're going to begin with an overview of the intelligence oversights apparatus. what are the different entities that are working to keep this secret use of power in check? do they work effectively and are they improved? there are fewer people to lead this discussion than from the project of oversight which does excellent work, working to

increase transparency across government in particular of the intelligence agencies and i'll pass it over to introduce our first excellent panel. >> thank you so much. some brief introductions, our panelists have long-storied careers. the strategic chair of theater intelligence and an associate professor at u.s. army war college. she recently published her first book, when should state secrets stay secret, with the cambridge university press. daniel schumann leads demand progress and demand progress funds efforts on issues that concern government transparency accountability and reform and civil liberties, national security and promoting an open internet, a nationally recognized expert on federal transparency, ability and

capacity. a professor of political science at villanova, among other titles, cia and congress, the untold story from truman and called one of the coolest books out there. and the professor is a collegiate professor of law leading on civil rights and criminal and criminal detention. i think to kick us off, before we get into kind of what are some of the problems with oversight of the intelligence community, we should understand kind of what are those -- what are the mechanisms that exist over this relatively secret government apparatus. professor, i hope you don't mind i come to you first, you were at national security or nsa. could you talk about that and limits to internal offices and

then we'll go into external offices that exist. >> great. so i come at this conversation from the role of the former -- as the former head of the civil rights office of the department of homeland security where i played the role as an internal overseer for the tiny sliver of the ic located at dhs, but i got interested in nsa at the center of this. so, if you think broadly about the internal offices that play some role in compliance with externally imposed norms and with what you might broadly call oversight, it's a pretty big list, and i suspect the panel will quarrel with some on the list. i need to make sure i didn't skip any. i needed notes. so there is at the nsa a compliance office responsible for aspects of compliance with

especially the strictures of the fisa court and also the 12 triple 3 rules. there's the office of general counsel which functions in part as an oversight office though in large part not. in large part enabling its office, to do what the client wants to do, but in some degree that's an oversight office. the nsaig, more independent. the civil liberties and privacy office at the nsa, which has both the policy role, the policy creation role to be at the table when policy is originated, a policy implementational and an oversight role. there is at the department of justice, there's the national security division. a quote that i like that says that this is not such a big oversight office comes from a former doj official who called the nsd, the place the ic goes to get blessed.

so that makes it sound not very oversight-like, but other people disagree with that and say, yes, that actually functions as an oversight office. there's the intelligence oversight function at the department of defense. there's the intelligence community ig's office. odni, civil liberties protection office which particularly has a role in 702 compliance work. there's the odni office of general counsel. the odni mission into-- this is integration, that's not right, is it? i think it is right. mission integration function, which again has some compliance oversight sorts of functions. there's the president's intelligence advisory board, intelligence oversight board. there's the fis itself which is internal itself now i'm exiting from my role here and the p club and two more minutes if that's the right time.

the challenge of oversight, internal oversight offices is simultaneous simultaneously, the offices-- internal oversight offices are desired by the agencies they work for because they want the blessing of those offices. they want the external credibility that such blessing gets them. if they can create enough authority or enough of a reputation that the blessing actually carries some reputational benefit. that's what they want from them. they might also want the expertise, but they don't always want the expertise. what they mostly want is the blessing, but then the question is, well, what comes with that? so what comes with that has to be some kind of actually bringing into the agency the norm that the office is designed to further. so, if it's a civil liberties office there has to be some civil liberties credibility

that comes with that. so what those offices have to do if they're going to be effective at all, is they have to maintain simultaneously their influence in the agency and their commitment to whatever that external norm is, which is a norm that academic work sometimes called a precarious value, a value that's challenged in the agency and that's kind of continually under threat. so, this office, whatever it is, save the civil liberty and privacy office, has to carry a sustained commitment to civil liberties and privacy against what is a really very strong mission orientation that tends to run against that value. it has to do that simultaneously while maintaining influence in the agency and that's the challenge. and so how can it do that? well, it has to maintain pretty

strong affiliation, both with the agency and simultaneously with external reference points outside the agency, but if that needle can be threaded and we'll have more time to talk about it, then what it can do is issues inside the office for more empowered entities that can actually, you know, tell people what to do as opposed to just advise them. it can increase public access by writing reports, both reports that are publicly available and honestly, reports that either get foia'd or leaked, but internal paper that becomes, he external and it can build external agencies with the ideas. and if that sounds hopeless, my position on this, it's not hopeless, but, boy, it's very, very hard. >> yeah, and so internal

oversight offices certainly serve a purpose, but they can't be the only -- they can't be the only track on what -- especially in the intelligence community, could be real extreme abuses of their authorities. >> can i just say, it's not only because they're not empowered enough to be the only check, but because if they're the only check, they will lose both influence and they'll lose that external orientation that they need to succeed. so for both reasons. both -- they're underauthorized, but also because they'll just lose whatever influence and commitment they have if they are the only check. >> putting aside questions of effectiveness now. this is a question to the whole group. what are some of the major external bodies that play oversight role in the intelligence community. whoever wants to take it. >> well, we could start briefly with congress. there are full two committees on intelligence and they have

existed since roughly the mid to late 1970's. it's been a logic, sort of constitutionally derived logic of congressional oversight of executive branch agencies that goes back to the presidency of george washington in terms of congressional oversight of intelligence and my specialty has been especially cia, it was very informally carried out from the 40's through the mid '70s, but not very adequately. certainly not systematically and so now we have the house and the senate intelligence committees, which one hopes -- i mean, the thing is about intelligence agencies and surveilling, so much has been carried out and must be carried out in secret so on behalf of the american public we have democratically elected officials to monitor. there's a president, but there's also congress and especially these two committees to preside over legislation to

keep them functioning, to create boundaries, to investigate, to see that they are performing with both competence, but also legality. so-- >> can i pick up on that a little bit? you know, even further, the congressional oversight committee, they're intended to rebalance and symmetry when it comes to the external world agencies. you're looking at the executive branch, ownership of intelligence committee and they balance that by asking questions and bringing in people, requiring reports, testimony, that type of thing. and one thing that david touched upon, both were in 1970 in the wake of scandal. so the church and pike committee investigated intelligence abuses and the committees were stood up as a bipartisan way of putting

boundaries on intelligence activity. i think the scandalous births, the birth from scandal that these committee, these select committees show is an interesting political piece to the whole picture. that these -- this oversight was done sporadically up to this point and then decided we need something more formal to rebalance in relationship. >> i think that's important, when you think about congressional oversight. it's not just house and senate intelligence committees, for example, fisa is overseen in part by the judiciary community and play a significant role here as well. the story for the house and senate intelligence committee, from being overseers to being, you know, the supporters or almost the boosters for the intelligence community. so, the role that they've played has changed from the post church and pike committee role and overseers to no, no, we're going to be your biggest

advocates and advocate for things you don't necessarily want. and the government accountability office, which has a number of folks with clearances who are intended to aid congress in getting questions answered. the intelligence community tries to work around gao and they have that role. there's also the inspectors general that exist and can talk about that more than i can. and there's dissidents, there's whistleblowers, there's the press, there are a number of players that help educate and bring particularly with congress, congress is the major point of leverage where you can actually force folks to answer questions and you see a lot of games that get played. there's 1.1 million people with top secret or higher clearances. there's 40-something people on the house intelligence committee. the number of senators who have access to a staffer with a

tssci clearance is i think 37. and most don't have their basic questions answered. so when you walk with oversight, you know, to what degree, to what extent, of whom, with what help. and i think when you look at in the congressional context, the political games that are played and so just going back to history for one final whack at them because it's fun for me, it's a select committee, which means that the members are closen by the speaker and the minority leader. it is not a standing committee like judiciary. its members are supposed to reflect the composition of the chamber, but it doesn't actually happen in effect. and often times they don't have representatives so they're required to have someone from judiciary. they've had periods of time they haven't had anyone from that committee. so, you know, there's the overseers, but the extent to which they oversee is an interesting and open question. >> i was-- if nobody else brought up the role of whistleblowers in

overseeing the intelligence community i definitely was going to. i'm glad you beat me to it, daniel. professor-- or dr. barrett, your book the cia and congress the untold story examines the years between the cia and the bay of pigs invasion. what one of you referred to as the dark ages of the oversight. do you think that oversight has changed much since those dark ages? >> oh, i think there's some common features across all those many decades, but it's changed very substantially because in the old days, if the first three decades or so, there were tiny and secretive subcommittees of the armed services committees and appropriations committee and sometimes some of them perform somewhat effectively. there was no full-time staff devoted to this.

there were members of armed services and appropriations committees and subcommittees who would assign some of their staffers to spend some of their time in assisting them, especially the cia, monitoring. so, it was a -- that old system wasn't as awful as the history books say. that's one of the conclusions of my book, but it was never anything like comprehensive or systemic so now we have these big committees. maybe they're too big, these intelligence committees plus as has been pointed out, other committees engaging in oversight, but we have a lot of members of congress who at least can examine what the intelligence agencies are doing. my against of it, when i've spoken to former legislative liaisons for cia and i've spoken to a couple of them, i have to say for what it's worth, they were very unimpressed in their years where they did that work with

the sort of attention and questioning that cia received from members of congress. you would think in the modern era with these big committees, big staffs, all of this that we have, that the quality of oversight would be better than it is, but one consistency across the long haul from 1947 to today, if i can believe these former legislative liaisons, is that there's strangely not enough attention given by most members of relevant committees to intelligence oversight. >> and why do you think that is? and that's a question for the group. i think, especially, in our advocacy on whistleblower protections and increased transparency in the intelligence community. it's my experience we go up to the hill and meet with staffers and that's the end of the

conversation and that's been my experience, but i'd love to pose the question to you guys. why do you think that is that maybe members of congress and their staff aren't asking the tough questions they should be asking? >> can i take a-- so maybe i misspoke before. so the house intelligence committee has 40-something staff. so the number of personnel they have is tiny. congress as a whole, they're putting it in a context compared to the 1970's, there's a thousand fewer house committee staff than in 1983. there's 20% increase in senate committee staff. gao is down by 2,000 staff and others down by 20% as well. we see an a diminishment in the number of staff and the obligations for members has gone up significantly. so, i think this follows what you're saying. congressional focus and

attention is very diffuse. you didn't say that, but i'll say this, it's often reactive, that it's reactive to the news, it's reactive to leaks, reactive to the administration, it's not proactive and when you have a big thing happening, right now impeachment is going on that's being managed by the house intelligence committee, well, how much are they able to oversee the intelligence community which is what their primary responsibility is when they've been spending all of this time focused on this other thing and this isn't a critique, we can get into that later if you want, but it's more, you know, they just don't have the resources to do the work that they need to know and a lot of their staff come over from the intelligence committee so there's also perspective issues in terms of, you want to make sure that the people that you're hiring to help do this work and the people that leadership are selecting to run the committee are those who are motivated to go in and find out what's going on and to talk about it, but they feel that

the intelligence committee wasn't answer the questions if they don't give them accommodation. you take things out of the public space or you don't ask the tough questions, you don't have the people who can ask the tough questions and a lot of oversight that needs to happen doesn't happen for sort of the institutional design reasons. >> you know, a lot of what has just been described is just endemic to the way that congressional oversight works. it's not particular to the ic and to oversight of the ic. almost never talk to someone who works at an agency who says, you know, our overseers are amazing. that's a sentence i've never heard, right? and so now some of them have more, you know, homeland security famously has whatever it is, 34 committees that oversee it, which has witnesses -- which has its own problems. the role of oversight is limited by congressional

oversight. the difference is -- there's a few differences, one is clearances. i mean, there's a reason that these committees hire people who are coming out of the ic. it's because that way they start with clearances and knowledge and because the subject matter is so hidden, if you don't hire people who have the expertise already, it's very hard for anybody to develop the expertise so you have this inherent, you start off with people who have a-- i wouldn't want to call it captured, but you know, in the academic literature on the path to capture, right? and oversight, congressional oversight has to play a bigger role with the ic than it has to play with any other part of the federal government because of the security issues. so, we're asking congressional oversight to do something that it's incapable of doing, even in a really open area, agriculture or whatever, right? it's incapable of doing it and yet, we're not only asking you

to do it about the ic, we're asking you to do more. >> just to follow up on that because i think that it is a certain piece, aspect of this is capture and also, i think beyond the secret nature of intelligence, it's highly technical. it's limited staff and you've got principles torn in a lot of directions. intelligence is not their only responsibility. and one could argue the structure is not set up to make them delve into controversial issues, but i think they want to introduce the concept and importance of emerging technology in this. one could argue, could you understand a covert operation that involves operators, can you understand how satellite works, do you have the people who can do that? can they explain it to you? do you have the time to understand that. i think that technology is increasingly complicating the oversight picture. >> and there's the matter of reelection incentives. no one wins reelection because they're a great overseer of

intelligence. >> to constituents-- >> i mean, it's off camera. i mean, right? to the exit extent that oversight is for elections is because they're conducted in public, but these aren't. >> i just sort of want to weigh in, want to push back on the notion that congress isn't capable. maybe i'm overstating your point, but i don't think that congress isn't capable of oversight in this context. i think that the church committee report and investigation that took place there was highly technical, highly detailed, it was politicly dangerous shall it wasn't good for church. it was -- it changed the nature of the way that we looked at what was going on and great wrongdoing across a wide spectrum. i hate to talk about this with a historian sitting to my left,

but the house intelligence committee seemed to do a good job in '70s and '80s and they sort of slid away from that. i think wooer a he seeing an institutional design. congress itself made itself dysfunctional. decreasing the staff and a choice that how many members members site on and appoint the house and senate intelligence committees and these choices combined. a hearing i was at yesterdayen 0 bringing back intelligence, if you want to know about encryption, having a dedicated body of staff that work for you who can answer those questions is invaluable, but these were cut off in the mid '90s, there was the gingrich cuts. >> and definition is killing off one in ten, i don't know what two in ten would be. it destroyed much of the capacity of congress to do this type of work, but that's a policy choice, a design choice,

i don't think it's because they're inherently incapable. i think it's the result of a number of political in retrospect weren't wise, but they don't have to be the final choice of what the decision ought to be. >> and we're talking about the intelligence community as one group, as one body, but everybody in this room understands that the intelligence community is made up of different agencies, different offices within agencies that aren't typically part of the intelligence community. and one of, i think, the challenges is kind of coordinati coordinating roles across the board. i think the intelligence community is a really good example of that logistical challenge in terms of executive branch. and so the office of the director of national intelligence it was created kind of to play that coordination role and in a way to oversee the actions of the entire intelligence community.

in your opinion and this is a question to the whole group, did the creation of the office of the director in the office of intelligence change the oversight positivelily or negatively? >> wow, that's a hard one. >> i mean, i think about it quite a bit and i -- you know, i talk to people about it, i talk to people who i know someone who used to work at odni, but i don't have a clear sense of that. >> yeah, i mean, there's obviously pros and cons. i mean, it's like with everything, you put in structures and they have the potential. i don't think that you and i are disagreeing with congress, actually. they have the potential to do things and they have a drag on that potential that comes from whatever sort of situation they're in, right? odni has occasionally been

great for oversight and other times, not so much, right? and so like which-- like how do you sum that? i don't know how to -- i don't know how to add that up. >> and i think that this is, it's an interesting question because the variation also a very dependent on the individual who is in that position and i think we really saw this with dan coates in his relationship when he stepped down and we saw acting dni mcguire in the situation he got in in the impeachment process we're talking about now and i think that measuring its effectiveness means we have to look at what it was designed to do, streamline and integrate and point of contact for the president and others on issues, is this achieving that? or is it one more layer of bureaucracy that's getting increasingly large. i know people who also work there and say, well, some think it's a great vista, a great vantage point. others think it's just one more structure that's out there that's muddying the waters, but

it's very, it's an interesting, open, hard question. >> i hear more often the -- it's an additional layer of bureaucracy argument. there's some specific ways in which odni has improved oversight of intelligence. >> well, i mean, think -- even just calling it oversight is sort of an interesting question, right? because describing at least internal oversight. congress not so much, right? so when congress talks about oversight, they're talking about, are you doing the right thing? but for internal oversight, it tends to be are you doing the legal thing. right? internal oversight's aspirations tend to be much tamer than congressional aspirations, if they tend to be a compliance train rather than a policy, you know, is the game worth the candle kind of frame or maybe game worth the candle isn't quite right. but is the drag on civil

liberties worth the gain, whatever the gain is, to security or to intelligence? odni has been, when it does internal oversight and i'm talking about the office as a whole, rather than the director, has been in compliance mode. i've written and believe that compliance mode is not -- it's a useful mode, but it's not actually the mode that we most need, that compliance, you know, if the rules are set to allow a pretty strong degree of intrusion on civil liberties or privacy, compliance with those rules should not satisfy us and that there's insufficient attention paid by people who are in the know to think, is that the right set? i think that odni's compliance mode has furthered the

disinclination to think about surveillance from the perspective of are we doing the right thing as opposed to are we doing the legal thing. so, that doesn't really answer your question, but i think that you can see it in the sort of, what's been made public of the reports of the civil liberties office at ad dchlad-- odni and that's compliance mode and i don't think that's terrifically helpful of what we need out of that office. i think we need something different. >> i think that the distinction that you draw is a very useful way of thinking about it, the is versus the odd. and that's the legal counsel of justice. just because you can make a plausible case that the law allows you to do something or that you will not run into legal difficulties for a decision you make because no one will ever find out about it

or if they find out about it nothing they can do about it because they don't have standing or all of the legal ways that you can stop something from happening is a very different conversation from, well, what's the blowback if our allies find out that we did this thing to them, or what's the consequence when people see that we're interfering in political systems, like, is this wise? is something that you would think that would be internally decided as well as being imposed on them by congress and the political process, but the concern that i always have with the entities that have mixed responsibilities of implementing whatever the political decision is, as well as having this sort of foresight role is that the ladder drops away. can we do the thing that's being asked of us? or what's the maximum amount we can do without getting into, you know, if and when there are hearings like we'll merge unscathed, i think that's a very different question from is it actually wise to be doing

this thing and i don't think that that conversation happens as much as it should and when it does happen, it is subsumed by we can do this rather than should we do this. >> and offices can plausibly say, well, is that illegal? and that's a powerful move. if instead they say, that doesn't seem worthwhile. we think the privacy invasion of that is not worth the gain in intelligence. if they're seen to do that, they kind of lose juice in the agency. they gain authority in the agency to the extent that there are compliance offices. internat offices have an incentive to stick with compliance and civil liberties in the office have an incentive to stick with compliance and stay away from really, which is

a piece of is that wise, right? and so some of the offices, many of the offices, say, okay, that's what we're going to do. we're going to be about law and what that does, it derives the ic of a voice that isn't about law, but is in addition to being about law, about interest. and the privacy and civil liberty interests are real and they need representation in the internal process and they don't get it because the offices, and i think this is true of the odni office, sort of have reasons to not want to be seen as kind of going there. >> it would strike me as a real missed opportunity to not address those concerns because i think when we see scandals coming out of the intelligence community it's almost always related to those encroachments on civil liberties.

so, i would think that the intelligence community would have an incentive to begin addressing those earlier on in the process in a really serious and meaningful way. >> can i-- >> yes, absolute. >> sort of in that context, and i'm next to the scholar who can address this better than i can, which seems to be the case today. when you look the emergence of the state's secrets privilege, and this is in the context not of grave questions of state, right, it's about liabilities of the widows of people killed in a plane crash, it may or may not be intelligence, it's national security. bases in georgia leaking toxic chemicals that are killing their neighbors. it's know the can i open your your e-mail? it's can we open this into the stream and giving everybody brain cancer ten years later or planes falling from the sky because we're not doing due

diligence. there are a whole spectrum of questions when you put the cloak of secrecy over something and when we put it over more and more things, is it about protecting something that needs to be protected, that really needs to be protected? is there a compelling argument for somebody pushing back or something just embarrassing or if that's more than embarrassing, that creates liability and political dis disincentives for us. but it's something that we sort of want to keep underwraps. are you suggesting that the intelligence committee keeps things secret that could be embarrassing? >> no, never. >> because that's against the-- >> nor are they advocating against more transparency around things that they do. >> and so going back to congressional oversight and the role it plays, specifically in the intelligence community, i think everybody can recognize

that we are moving in a much more hyper partisan direction almost daily and i think the intelligence committees in congress have typically been above the fray, typically, not uniformly, of course. but i think -- and not just starting with their role in the impeachment inquiry, although that's certainly not helping, i think we have started to see this hyperpartisanship affecting the committees. what do you think the impact it's going to have or is having on oversight of the intelligence community? >> well, i just start. i wonder about the future not just the present, but the future of the house intelligence committee having had this deep dive into the impeachment inquiry. i can only assume that speaker

pelosi deciding that representative schiff chair the house intelligence, that committee to take on that role, this is a sign of her respect for schiff's intelligence, confidence and all that, but certainly my sense of the house committee versus the senate, i sort of made myself do some reading about what the committees have been up to recently and certainly get the sense of the senate committee functioning fairly well in this hyperpartisan period in which we find ourselves and of course, the house committee not so much. and i think what could draw the house committee, house intelligence committee back into a more sort of bipartisan cooperative functioning. i mean, i'm always interested -- periodically i check to see

how the two committees, which are themselves, we should acknowledge, the committees are shrouded in a lot of secrecy, it's not just the intelligence agency, but the committees are shrouded in secrecy, but how do they present themselves to the public and it's instructive to look at their website and when you go to the website of the house committee, you would barely know that there are republicans. you can click on minority and then you go there and it's nunes and you wouldn't know much of anything about schiff. and there, from nunes you can hear essentially conspiracy theories and anyway, a bit of a mess. well, with the senate committee, you know, you see both sides and you see more evidence of constructive functioning and cooperation. that has to be a tribute, i think, to senator burr, the chair, and the ranking--

and the vice chair senator warner, the democrat. but how do we move -- i think there's a difference. there's an old idea going back to 1948 that congress should have created a joint committee on intelligence and much to my surprise, the so-called 9/11 commission sort of publicized that idea, recommended that idea probably in the 21st century. my friend ron johnson, a great scholar of congressional oversight of intelligence, i've heard him say, you know, if you're going to fly a small plane and there's some danger, better to have two engines, rather than one. if one engine is not working and maybe the other will. my sense of it is, one engine is working at least fairly well, the other is not and i wonder how to get the other one -- i just think you can't function very well if you're utterly polarized. i think that unfortunately this

impeachment role has made that problem more difficult. >> yeah, say that i tend to agree with you that the senate has been operating more normally, i guess, than the house. but i -- you know, there has been reports that chairman burr is considering subpoenaing the whistleblower, that kicked this all off. yeah, your face is exactly my face there, and i think of course there have been requests on the house side to do that as well and i think it would just be an incredible mistake, considering the role that whistleblowers play in assisting congress to do its oversight to do its oversight work, so, yeah, i mean, as an organization that fights for the rights and protections of whistleblowers, it's a scary time to see this happening. there are other intelligence whistleblowers have weakest protections and hardest to enforce protections in the

federal government. so i'm holding my breath watching as things go over to the senate how that will be handled. >> so a couple of things, first i wouldn't draw too much from the disturnings -- d distinctions from the house and senate, you see that for all the committees. there are other things that support your thesis, but not necessarily that. i also think that the spectrum of bipartisan to hyperpartisan is the wrong spectrum to look at. i think the house intelligence committees were failing long before the trump administration and impeachment game. it was largely in support of a lack of oversight and that was more captured by the perspective of the intelligence community and that going back to what we had five years ago is also bad.

the hyperpartisanship is bad, they're using the powers and tools to go and release-- that's not helpful in the liess and is destructive. we put out a report two years ago with 26 organizations and scholars in congress that talked about changing congressional oversight, strengthening the gao and also the house and senate intelligence committees. one you have to do what a number of scores recommend. go and see what has happened, and figure out, pick the year 2000 and say from year 2000, there are the steps taking place and how a separate one that hasn't been captured construct that investigation. and hire more than 100 staff like the prior did. and several years of work and what the state of play is.

you also need to think about the consequences of having leadership, the speaker and the minority leader picking the members of the house intelligence committee is pernicious. you need to think about do they have enough staff, 40-something staff is clearly in the enough to do their job, but when you look at the committees that they oversee. the staffers wait years for clearances when they're in congress. this is ridiculous, if jared kushner can get an interim clearance in week-- i don't mean it pick on him, if you can get a clearance in a matter of days and takes more than a year for a congressional staffer to get a clearance, that doesn't make any type of sense whatsoever. >> right. >> and a number of things. taking all of this and sticking it in a super secret committee when the purpose of the committee to is act as the avatar of american people, there are communications from the obama administration that were sent to congress that the house intelligence committee stopped from being sent to other members of the house which they're not allowed to

do. the house intelligence committee will chastise members for putting up placards on the floor, things that were published in the newspapers because it was classified material. if it's on the front page of the new york times, but the house did ethics complaints against members who do this type of thing. we have a handful of folks who have taken themselves to be the arbiter of this and closed the cloak around themselves and can't see what's going on. members can't see it. staff can't see it. the public can't see it and this is a fundamental problem so i would suggest whether it's more bipartisan or hyperpartisan, i think the nature of the house and senate intelligence committees themselves is indicative of failure and we need to rethink it from the ground up. >> i think you make very interesting point about the long wait time for security clearances and one idea that we've-- that we've gone over and over there's precedents for congress to take over the job of

granting security clearance to congressional staff. done either through the house-- sorry, through the capitol police or another body and i think that's something that the congress should consider because the fact that you're right, that you could get an interim security clearance if you're in the white house in a week and congressional staff are going to have to wait years and that incentivizes pulling people further from the intelligence community into the oversight offices, which is not necessarily a bad idea, but you've got to balance that out. >> why hasn't congress done this? my suspicion-- again, i'm sort of historically oriented, but when i look back decades and further-- i see so much deference from the legislative branch to executive branch. is that the answer why congress hasn't done this? >> there's a great letter-- a question for the ages. >> there's a great letter from 1978 between the head of the cia and tip o'neill where the

cia, i believe it's the cia says there are too many people with securities across government and we need to -- and we need to encourage you, and at this point o'neill, as long as you keep them for leaders. and we look at the people in executive branch with clearances and congresssional isn't going to be happy about this. well, as long as leadership get their people it will be totally fine. speaker pelosi is an existential member of the committee. the speaker, the people that she hand picks and the leader and people he hand pickses have access, they think that the rooms the members of congress aren't entitled. a question about clearances. why does congress, why does congressional staff need to get

clearance? clearance is an executive branch function. with uncongress could do it for the others and putting aside that, why would congress want to go to these other folks to engage in this. there's an answer like the consensual process by which you obtain information, but from a first principal situation, there's no reason to do so. >> i mean, there's a momentous sphere in ic related stuff, right? it's the area in which-- not the only area, but the area in which someone could say to you, that would be the end of the republic. or some moderated version of that. and everyone who has been involved in oversight or civil liberties protection has had a story to tell.

somebody says to them, one that is me where it's not so much hearsay. where somebody said to me, that's a victory for our enemies and you know, i thought they were wrong. i thought this person was wrong, i thought that was insane. i think just to reassure everybody, i think -- bear me out, but the fact is that that requires -- i mean, that's why congress wants her people to do clearances, right? because that way if something bad happens, if there's another set of disclosures, if there's a leaker, if there's a whatever, if something bad happens, they could say, look, we didn't clear it, they cleared it. those people who are the experts, they cleared this guy and so, you can't blame us for having given him the clearance and that's also why there's this implicit threat in terms of disclosures and that the

experts in the agency are actually better equipped to dismiss that threat than people who are less expert. how is the speaker supposed to know if something really is a threat? that would take a lot of attention and she's got a lot of stuff going on, right? and so it's nice for her. i don't actually mean this about pelosi, about speaker pelosi in particular, i'm not talking about a particular dispute. in general, congress as every reason to get the say-so of the ic before they disseminate information and people can't criticize them if something bad happens and they don't have to figure out if it's that likely that something will happen. >> i just argue that while it may be that the easier way out and the way out that means less consequences for them. it's not necessarily them

fulfilling their role as the legislative body. >> oh, i didn't mean this as a defense. >> no, no, right, but i think it's easy to hear that and say that makes a lot of sense. i wouldn't want that responsibility either, but i'm not a member of congress, for a good reason. and so i guess i just, i don't have a lot of sympathy for at that position although i do understand the human nature coming into it. >> and it's also like, the circumstance right now is the worst of all worlds. they get informed the gang of eight get enveloped of things in cryptic forms. there's the rockefeller note, you know, that the-- he was the vice chair of the-- >> chair or vice chair, but the story-- >> he was informed of illegal behavior and he writes a note to file, handwritten note to file. it's ridiculous, he's the chair or the vice chair of the committee and sticking it in a file. i have real problems, but nt

can't consult with staff. >> just do it. >> that's your job. congress took the down side. we told you this was going on and you didn't stop it and what's the up side? there is no upside. all of these things will continue to go on. scheme of theater, oh, well we'll tell some of them and a handwritten note in pencil that will come out. >> that's politically untenable and makes congress look stupid because they're deliberately choosing to be stupid and dangerous for them as a body for the american people. >> simon, i'll ask one more question and then i'll go to the audience. i may be putting you on spot and i apologize, to move into the conversation about necessary reforms in this space. if you could -- wave a magic wand and there would be one thing so it doesn't have to be

politically feasible in the moment and doesn't have to be-- if you could wave a magic wand and have a change occur in an oversight office or entity of the intelligence commute. what would it be? what would you think would have the most impact? >> okay-- >> go for it. >> these are going to be super wonky, but they're possible. one is that every member of congress should have one staffer who is cleared as tssci level because of the games that the briefers play. and interdugsing this for a couple of years. and i would change a select committee to a standard sd committee so they're chosen through the political processes by the parties and not by the speaker or minority leader and be more broad to their caucus and not beholden to the person who appoints them to the

committee. >> and staffing size, increase sizes of a staff, that's a serious weakness, that they don't have resource and support. they need the clearances, but they need wide expertise and i keep harping on the technological piece, but so much of this is headed in that direction, we need to broaden that body there to support the principles. >> i understand there was an ideal, pretty much alive back in the '70s, '80s that those appointed to the two congressional intelligence committees, that those members should be people who have really good reputations within their respective body for sort of seriousness of purpose and are willing to spend the time and the willingness to be nonpartisan, bipartisan, and how to sort of revive that ideal, sort of relative to what you were doing. one of the ideas i read about,

different from yours, specific to the house side was to have the speaker and the minority leader agree that each should agree to who has chosen to be-- ... would be serious about intelligence oversight. i mean, i think everyone in this room knows it but there is a big audience out there on c-span2. i just want to make an

elementary point that i think this matters what intelligence agencies do is critically important but we know from history that sometimes there has been incompetence, sometimes there is been illegalities. and congress and these committees especially can make a difference. sometimes they have. >> i'll just take my role as focusing on the internal offices, not because i necessarily think those of the most important. i actually don't think those are the most important but that's what i'm doing on this panel. and i think in each element of the ic i would redesign the internal civil liberties office to increase its sort of hierarchical stature, to increase its access, and to safeguard its kind of role in policy development and its

connection to external advocacy communities to try to bring civil liberties perspectives into the agency development process. >> can add one more thing, i think we look at that as a boundary standing institution, that kind of cover some of this. you have reporting inside and external. i would argue, i have a politicized mechanism will, in terms of one agency investigate its own inspector general come to strengthening that role, reinforcing the importance, some who can be both worlds would be another thing i would strengthen. i would use it as to cope with the rest of things we talked up because that role is crucially important. >> if i could push a little bit. when you say strengthen those inspectors general, do you have specific recommendations?

>> i think the question when you talk about the efficacy of the role is autonomy. that will have to be protected. i don't know how exactly how you do that. probably through some type of rule structure internally. statutorily, but it think it's developing culture and norms around that role to keep it relatively secretary of state. i don't have a concrete right this rule and builders in a death that will be affected by the economy is there. what happens to this individual when the complaint internally, and that is the crucial piece. it can be seen as effective. to try to break to what we've been talking that which is the difference between internal and external but it can be seen as this loyal person within a straightforward, i work for the army, chain of command. are you loyal internally or externally? that person needs to be kept

safe. >> one id we've been pushing for a for a little while is to give all inspectors general for causal removal protection. we even sought with the ic ig recently after sending the letter to the carts, the president was mulling firing him. there isn't a think you could stop president from doing that. you serve at the pleasure of the president and doesn't benefit from protections like some other over site offices to. >> we see keeping it vacant, these types of ways weakening that role. >> i'm not a specialist in inspectors general but my sense of it is, and i know some of this history, like inspectors general have done some great reports across -- some really gutsy reports across the decade. have there been some horrible failures by inspectors general for intelligence agency? because i am mainly certainly

with some real gutsy reports. >> one of the biggest failures would be not properly protecting whistleblowers. and so i think even just earlier in this administration the person that the president chose to nominate for the cia inspector general position which had been vacant had opened whistleblower retaliation complaints against them. luckily, reporting, we reported that and i think that factored into the senate not advancing that nomination and the later withdrew. but i think it goes to show there are a lot of responsibilities that these individuals hold. you mentioned earlier having strong leadership is critical. that's one example. >> there have been some failures to engage by inspectors general. there has been some situations where the inspector general is known to have known about some

problem and didn't take it on. so that's not as public as a gutsy report. it's a dog not marking. i don't know if any in the ic, which doesn't mean there are not any, i have no idea, but there are definitely some inspector general reports you read in some agencies where you read it and you are like, that's just not right. that makes sense, right? it's another office, at office with the staff that has to be quite expert in quite contentious topics quite fast. definitely inspector general makes a mistake sometime. >> i went to deep on the ig come on inspector general point because i'm from the project of government oversight. now we're going to the audience for questions. please wait to be called on. wait for the microphone to everyone in the room and the

online audience came here, and at the start please announce your name and affiliation. >> thank you. my name is stephen tete, retired former service office. while i was surfing i did two tours in the state department. of intelligence and research, one at the time of the first gulf war when i was secretary, or i was associate editor, and then at the end of my career i was working dealing with the caucasus. i appreciate it very much or comments. there are two areas why some observation i would be interested in him which have to say about them. he was speaking about the role of the dni, and i think if you look at small intelligence agencies like the bureau of intelligence and research, it's a double-edged sword. the good aspect is that people

working for the small agencies get to do details to dni. they now are far more involved in the process of repairing the president's daily briefing than in the past. the bad part of it is that there are now more, and a large institution and there's perhaps less opportunity for the dissent there was in the past and i particularly think of dissent in terms of the famous footnote of the second goal for. that would be my observation on that. i'd be interested in seeing what you have to say on it. your comments on congressional oversight. first, having worked in one of the smallest intelligence agencies, i would disagree with you about focusing on the number of people with clearances. i would argue that's more important quality of the oversight process. and i know, thinking particularly one time what is

working on the caucuses and i went up to the hilt and i was speaking with some people about the country, and i was very impressed with the knowledge that they had and i was very impressed with the quality of their questions. and then we were going and talking about the quality of the oversight, something afford to keep in mind is that often members themselves are in agreement with the administration of the days positions. and i'm thinking again with the lead up to the second goal for, and they are often very much in agreement with the policies of that administration and with the practices, and in thinking of the torture tactics of the cia which are things i think were horrible of which i would argue that on a bipartisan basis had a lot of support. so again, thank you for your presentations and i'd be interested in your comments on my observations.

>> i'm glad, it's gratifying to hear you were hearing good questions from members because i was a little shocked or deflator to hear again from a couple of legislative liaisons that they were not impressed but i don't sort of, i'm glad to hear what you say. it's gratifying to hear that there were good questions coming from members. >> on the first one like i think very much very so you get and what time, so there are many smart staffers to work very, very hard and very long hours. there's not enough of them to cover the field. on the second point, i think the composition of the intelligence community, a since it reflects leadership means you will lack the level of this it necessary to push back on things that need to be pushed him like torture.

you may be factions within the democratic caucus or the republican conference who disagree with those behaviors but because information is kept happen to people who are close to leadership that the is an opportunity to push back. and i think if were going to treat congressional oversight seriously we need to talk about it in terms of congress him in terms of each chamber come in terms of all the members of the chamber being able -- not what we're doing now which is making it very, very narrow, reporting to the gang of eight, keeping information close in certain respects beyond the point that's necessary. so what was going on had been better within the house and the senate you wouldn't have just had, i remember members say we were never told, senior members saying they were never told. maybe they were. maybe they were not. but if more members knew it would even harder it to have

continued in a way that it did. i think that's true for a lot of activity. >> and i think with time for one, maybe two more questions. >> thank you all for being here. today. shana from cyber scooper i wanted to ask about current oversight of the national security agency. from the technological perspective but less about preps domestic surveillance and more about savannas abroad. is there a technical expertise now and what can we do to develop tactical expertise in these oversight bodies in terms of exploitation abroad and placing malware about to conduct that type of surveillance ghost i'm curious if you comment on it. >> i'm not an expert. you are probably more an expert on nsa that either i more of cia person. >> i mean, my impression i wouldn't want -- on to share an impression come is that 12333

oversight is not very robust, right? i i mean, we've been talking abt problems with oversight in areas that are massively more covered man come so everything you just heard, that's about other stuff and then say there's one-tenth, 100th of that amount of oversight going on for 12 triple through surveys. that's my impression but it don't really know that. that's the impression. >> very briefly, this applies to science and technology policy, like overset broadly, the cogs has destroyed its capacity to do the type of work to end up as few to support offices and agencies that could support that type of thing. there's a hearing that took place yesterday in bring back the office of technology

assessment. general i think there's an understanding on the hill that they are woefully deficient across the entire spectrum of questions and that there's an effort to release push back on that and try to reestablish the capacity they have lost. >> we've got one minute and 45 seconds. does anybody have a very quick question? >> good morning. thank you all for being here. martin, libertarian party. what would you all say, pretty much staunch libertarians who just abolished the entire ic simply because of the illegal wars, illegal surveillance, illegal assassination of people from john lennon to mlk to fred hampton? and the unaccountability and non-transparency to the public, how are earnings being spent? >> i would argue that increased

oversight may help you get there. >> why is everyone looking at me? i don't think you can abolish it but i think you can break it up. i think you take when major portions of its mission. i think you can embody significant oversight. i think that it is, what we've seen like you identified, including ongoing surveillance of war protesters and efforts to undermine our domestic political system is an ongoing threat to the security and nature of our democracy. that it is terrifying that we should be afraid of those things and we need to think about what is happening and to engage in systematic oversight and reconstruction of these efforts so that it is not dangerous to the body politic. but i don't think you will be able to get rid of those functions because they are necessary. >> all right. and with that we conclude our first panel. i want to thank all the panels and cato for putting this on,

and you want me to make the announcements? so were going to now take a 15 minute break. refreshments are available in the winter garden located on the first floor. restrooms are located on this level left of the elevator on on the lower level, turn left when he reached the bottom of the stairs and the russians will be down the hallways to your right. >> again, join us again in 15 minutes for second great panel. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations]

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>> you are watching live coverage of a daylong conference on covert surveillance and privacy issues hosted by the cato institute. we just heard a panel on how intelligence oversight functions or fails to function and how it could be improved. coming up will hear about recent disclosures concerning serious systemic complaints problems with two controversial surveillance programs. large-scale collection of phone text records under section 215, and warrantless wiretapping of foreigners communications with americans. we're taking a short break now and turn around 1030 a 10:30 a.

we will show you comments from this morning. >> good morning and welcome to the cato institute. my name is julian sanchez, , i'a senior fellow here and i'm wakeful to evelyn harris, bright and early to the cato, hayek auditorium it cato for 2019 surveillance conference. we've been doing this for some five years now. when we launch this in aftermath of disclosures about bulk and nsa collection by former nsa contractors snowden, the nsa itself was a fairly obscure agency and similar to most americans, and as we kick off our 2019 conference, we find that now even intelligence oversight is itself very much in public headlines.

we have an impeachment proceeding kicked off insignificant part by a report from the intelligence committees inspector general. we have forthcoming next week a breathlessly awaited report on allegations of misuse of the foreign intelligence surveillance act during the 2016 presidential campaign. we have proceedings aired in connection from the house intelligence committees. even intelligence overseers now are at the center in the sense of our it away that intelligence agencies itself began to be earlier in this cycle. anyway that was really unprecedented since the 1970s. we have a special focus this year on not just the intelligence agencies themselves but also the mechanisms in place to oversee them. one of the classic problems of

intelligence and surveillance in a free society is how to balance the need for operations that are inherently secret. surveillance system publicly and at sensitive definition not service. how do you balance the need to conduct certain kinds of operations, , information gathering in secret while at the same time rendering those with the power accountable to the public, the democratic mechanisms, given the unfortunate history around the world but certainly in our country as well, secret surveillance are being abused for political purposes. we have a program today that includes a discussion with one of the most important bodies to oversee, the privacy and civil liberties oversight board this afternoon. will have discussions on the renewed war on strong

encryption, one of the mechanisms that asked to check large-scale collection. were going to examine later this morning some of what we have learned about compliance issues or misuses of large-scale surveillance authorities under authority such as fisa 702 702d 215 another intelligence community is seeking to address those and how effective those corrective mechanisms have been but to start up i think appropriately we're going to begin with an overview of the intelligence oversight apparatus. what are all the different entities that are working to keep the secret use power in check? to the operate effectively and how can they be improved -- do they operate effectively and how can they be improved? [inaudible conversations]

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>> the cato institute is hosting a a daylong conference on carbon surveillance and privacy issues with live coverage on c-span2. they are currently taking a coffee break and will return around 1030 thymic. upcoming topics include recent disclosures concerning serious systemic complaints problems with two controversial surveillance programs, large-scale collection of phone text records under section 215, and warrantless wiretapping of foreigners communications with americans. they should be resuming in just about three minutes or so and our live coverage will continue throughout the day on c-span2. [inaudible conversations]

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welcome back to the hayek auditorium at the kid institute in washington, d.c. both those present here and watching at home. i am again julian sanchez, senior fellow who was very pleased to welcome you to the second of the 2019 cato institute surveillance conference. this continues the theme of focusing on oversight with respect to two particularly controversial programs, surveillance under section 702 of the foreign intelligence surveillance act, and a provision of section 215 that provides for very large-scale collection, automated collection of phone records. both programs have had some very serious complaints issues that come to light over the past few years as we thought useful to examine how those arose, what the nature of the problems we discovered is another intelligence community is responding to them and whether

the response we think is adequate to the problems that have been disclosed. to moderate the discussion with a fantastic panel headed up by pulitzer prize-winning "new york times" reporter charlie savage whose book power wars is probably the best portrait of national security policymaking in a presidential administration i've ever read. through the journalistic lens. i will pass it onto the charlie savage to introduce our second panel. >> thank you, julie. good morning, everyone both here in the auditorium and watching at home. so were going to discuss overseeing programmatic developed by 702 into 15. i'm going to briefly introduce the concept behind this panel and then we will turn to this very diverse and interesting group of clients to talk about it. i'll introduce each of them in turn as a ask the first question of them.

we'll have two rent to questions from me, one focusing on 215 and one focusing on 702. don't worry for those of you who are not in a week i'll explain it in the moment and then we'll go to audience questions but also you guys should feel free to break out of the mold if you think of something you want to tip it off, signal and we can be spontaneous. what is programmatic surveillance been? there's lots of surveillance programs. when people talk about programmatic sippers they are not necessary talk about any program that involves surveillance. it's a concept of, that emergent into public view but governments you before that, sort of after the snowden leaks i would say or even after the leaks of the what was wiretapping program. and the notion is a regimented regulated overseeing by a court system of surveillance where the

fisa court setting rules and supervising a chunk of the government, use only the nsa, could be fbi, and is performance of wiretapping or collection of data without necessarily signing off on whether individual targets meet legal standards, which is the traditional judge,, we need to get a wire top order on this mafia figure, yes, the standard is set, you can do, or know it is not set, , you can d. here's a whole program, there's the limits on who can access the data, here's what has to be done, here's the oversight and it's almost like the court is acting more like a manager rather than an adjudicator. this emerged, forgive me for those of you will get already in the weeds but those who are not, after 9/11 attacks, the bush administration. a secret surveillance and bulk data collection program called stellar wind. it at different aspects, one aspect of the government to intercept americans

international emails and phone calls without a warrant if the suspected of talking to a terrorist, and another element involved the bulk collection from internet and phone companies of metadata showing who was contacting home on a vast scale but not what they were saying. all this is being done unilaterally without court involvement, without oversight and based on very strange theories about why it was lawful. over time in a bush administration when parts of this came to light and telecoms get worried about how they were maybe sustaining legal jeopardy by participating in this, elements were moved under statutory authority and brought under the fisa court but for intelligence surveillance brought over separate the court issued broad rules and then supervise how those rules were being carried out. this emerged merged into what w

know of as 702, which is warrantless collection of e-mails and phone calls from american companies like at&t, as long as the target is -- [inaudible] talking with americans and what can happen to that data especially interesting with the government can do when it's looking within this repository or information about americans that it was collecting without it were. the other big category they came out of this which came to light after the snowden leaks was honest patriot act 215 collection, a systematic bulk collection from phone companies other customers calling records showing domestic phone calls. every contact between people and the united states, a sort of social map of who knew -- whom to try to find hidden associates of known terrorists. and then that program we came to light eventually was ceased to

be programmatic surveillance as i've described it. because one of the reforms the obama administration made initially to say we will now have judges approve each query. before you can dip into this database you need to show a judge there's a reasonable suspicion that this particular person whose universe of context you're looking at has the type to terrorism. in 2015 congress abolished that program with the usa freedom act and created a new system with the bulk data would reside in phone comes but could be accessed with the judges permission by the nsa. we're going to talk about, first, the legacy 215 program, the bulk metadata access to phone records, and then talk about 702, the legacy warrantless surveillance program which is still operating. so that's the landscape. let me start, turn it to my

colleagues here. to start with i'm going to start at the very end ben huebner, are representative of the government voice here. use the new alex for those of you who have come here in previous cycles. that means he's the chief some deliveries and privacy officer at the office of director of national intelligence overseeing 17 agencies across the federal government. he used to have a similar role, sort of one step lower at the cia. in june you moved up. what's that like? how is it different being at odni on the cia role? >> it's good. i wouldn't say to my colleagues i wouldn't say above. i would say i moved over. [laughing] it's a different role as far as at cia, it's a much more operational -- as privacy and

civil liberties officer more of the duties there required leak at particular individual actions or programs and whether we were or were not going to do then. there's still that wrote over at odni particularly because we have our center like the national counterterrorism center, , but consistent with te role of the odni more of the work is about the overall intelligence community approach and integrating that approach and also setting those rules for all the intelligence community now they're going handle that information. >> let's start with the thing that's the most newsy in this world come has nothing to do with impeachment, which is the fate of the usa freedom act system, the legacy bulk phone accessing phone data accessing as a came out of the patriot 215 program which came out of -- [inaudible] most of you probably know this --

[inaudible] the law that authorizes usa freedom act, the system that allows the nsa to tap into the records of all the phone companies with set to expire december, it was briefly ended -- [inaudible] pardon, briefly extended to march and continue resolution but it still about tucson sector the law is going to die unless congress enacts legislation to extend it, and this system has been shut down. it at problems and it ceases to operate and the question that arose, should the government ask congress to extend the legal authority for system that is no longer using encase it solves is problems and wants to turn back on again, or should congress allow the law to lapse just

because it's not being used anyway? ben, , could you walk us through the argument, i'm not ask you to take a position but to articulate, the internal arguments with incumbent comfortable when weather system was shut down and then what are the two points of view they came into issue about whether the executive branch should ask congress to extend -- expiring currently not use law? >> sure. unfortunately i'm going to take an already complex talk topic and make it -- explain why the program was suspended. there's a fundamental difference because of the usa freedom act between the prior program and the program as it occurred post 2015 until earlier this year. [inaudible] effectively unspecified particular target.

the control on that was when could the nsa tap into -- [inaudible] usa freedom acted something different. -- [inaudible] and then ed allowed effectively for certain type, a new type of business record request different than of the business record requests. in that come any more typical business request the fmi go to provide and say i would like to find out all of the call detail records for ben, , which would e all the instances in which my phone number, it would be for specific phone number, called another phone number and the type of record watauga call detail records is only that. this number called that number at this time for this amount, for this period.

it does not include content but it also does not include names. and does not include financial information. it does not include gps information or cell site information. none of those are applicable here. what nsa is authorized to get that's different from that normal business record request is often referred to as two tops. instead of just getting all the calls between the target phone number, my phone number, and the people that i contacted, that would be the first hop to but e second half in as it was able to get would be all of the calls come the call detail records, between those, the outer layer and the folks that they called. so a second hop, if you will. but not more than that and that's fundamentally different than the program prior to the usa freedom act.

so in early 2018 the nsa, nsa analysts noted some technical irregularities in some of the data a were receiving from those telecommunication service providers. at a cackle into extensive detail on that. the privacy and civil liberties oversight board is including a review of this program and where doing a classification review. some more will become at which i think is probably very frustrating for our particular panel but the will be a lot more coming out on this. but suffice to say that some of information coming from the providers from that first hop was inaccurate. it did not accurately indicate phone number a was in contact with phone number b. because of this to hop in nature, that meant an affordable there's nothing on the record itself that would indicate this was inaccurate that meant when nsa to that record and went and got the second hop, if that

phone number wasn't i could and got the second hop, those were records that in us it was not authorized to receive. it was on authorized to receive the two hop information but if there was an air for the first all those additional records they came in on the second hop would be over collection and certainly compliance to that's a problem. that's a problem from a privacy perspective in terms of nsa having records they're not supposed to that's it from from emission perspective. if the date is inaccurate and doesn't actually indicate an actual connection between two individuals that is not terribly useful from an intelligence perspective. then there was a third problem which as i said earlier it was not apparent from call detail records itself that information was inaccurate. there was no easy way to to get what were the records that were overproduced and what were not. what nsa did and what innocent public announced in 2018 is they

move to try to correct some of these issues but they also deleted all of the underlying data in that program from when it began in 2015 until the program, these issues were identified the programs did continue for some time but there was a reevaluation of the program. looking at and a compliance incident factored into this but they are not the only factor to nsa took a holistic look, look at the compliance issues and the data integrity issues for how accurate that data was. looked at how much, how useful information was, how much reporting was being based upon it. look at the cost of the program. compared that to other programs the nsa runs, and effectively made a business decision and said we are going to suspend this program and not continue this collection and effect delete all of the underlying collection against the too expensive, , too much of a

headache, we have much the same capabilities to other programs that are not as expensive and work better, let's turn it off. but then the law is going to expire raising the question, do we let the law expire or to ask for it to remain on the books? what other points of view on the question? >> the points of your neck question, the first point of view was this is a program that can provide as much value as folks might have hoped. did run into some compliance and data integrity issues. it was effectively an experiment, an experiment that didn't work out as intended and so let's let that authority expire. >> not working, move on. >> i think that is one of those of our articulate positions on this. the other articulate position on this is, look, this is an instance where we never want our intelligence community agencies to use tool just because they have it. we want them to judicial use the program when it is an

appropriate program to use and to not when it's not. that judgment was applied in this case, and the tools was put down but that doesn't necessarily mean that it's not useful tool in the future. i have plenty of tools from own toolkit that i bring out every three to five years. they are not my hammer i use once a week that they are useful when they are useful. so the other argument is this tool may be useful in the future -- >> if it becomes useful in the future, -- >> the nsa doesn't get access to information. the nsa would have to go back to the board, seek authorization to restart that program. that would be a significant program change which means they would have to notify congress that they were restarting the program. >> you probably can't fill this in, but the thrust has been the nsa and the intelligence community want to go with option a. we are not using it, let it die.

don't have the fight. but at the white house, john bolton then the national student advisor took option b, why give up our and made that the asked to congress. however, both the intelligence community and the set in the house have put forward draft bills that would not -- [inaudible] so the writing seems the wall a special with other things happen in congress that our psyche of the auction soon, that this programs legal authority may die soon. with that, feel free to jump in if i misstated something. >> i'm not going to comment on fashion other than to say they're there always robust. >> let me turn now to carrie cordero comes the next day, the robert gates senior fellow center for a new american security. she's also a former senior national security lawyer at the

justice department and then odni as well. which is your specially? >> both. >> so this sunset raises the question choose we seem to keep having these circumstances. we had one about 702 in early 2018 and now we have this one about legacy 215. we also had one about 702 back in 2012 and so forth. why is it we have to keep having these cycles? does it make sense for the country to be stuck in these recurring debate over the same issue? what is the purpose of sunsets? ten you talk about whether the surveillance programs and the legal authority auto shelflife, pros and cons? >> sure. some history of the sunset paper as relates to what was intelligence service i, fisa

savannas is a post-9/11 area of daschle security law. prior to september 11, 2001, then october 2001 with the usa patriot act was passed, was amended a number of surveillance log related provisions, fisa had a pretty good run as being fairly consistent. it was originally passed in 1978. there wasn't a substantial amendment to the law until 1994 in the physical search provision was added. that was a permanent authorization at the time. it did not have one of these temporary sunsets building. it was just congress considered it a law was passed in 94 and that was it. that savannas with baked into the law. there was some lighter and inmates in the late 90s as a pertain to business records authority. and then it was 2001 with the patriot act and we started to see the beginning of these provisions of sunset, where the law would be authorized for certain years but with a sunset

date and what that does as a practical matter is it forces the policy community and the legislative consideration to take another look at the proficient that were passed. i tend to think part of the reason for that was because of the quick nature with which the patriot act was passed in 2001. so the attacks were september 11 and it was about six weeks later that every substantial legislative package went through congress, very little legislative history. if you go back and look, and there's not an extensive record because it happened so quickly because it was in a heightened threat environment. and so the compromise that was made was a number of provisions that sunsets. that has really now carried -- about 19 years of surveillance history in five minutes of your opening.

that history has continued. there's pros and cons to whether or not the sunsets are valued, are valuable. from the government's perspective back when i was in government, there was some at the operational level frustration with the sunset provisions. oftentimes not because people within the government were necessarily opposed to the sunset and the legislative debate, but because it always runs up in congress is handling of the sunsets, it runs up to the 11th hour. here we are in december. these particular provision expire at the end of december. that doesn't seem to be -- i'm not hearing from the intelligence community publicly in this debate that are deeply concerned, particularly about the to 15 program about it expiring from a national security threat perspective. but i do remember in years past in the mid-2000s when these

sunsets would come up. there was really deep operational worry the law would expire and that would require at the operational level massive surveillance programs to have to turn on a dime. and that is not a good way to contact the national security business of the united states. >> to pull out for a second what i'm hearing you say is the notion behind the sunset is this allows for periodic reconsideration by congress of careful deliberative debate about with the rules should be. in practice congress as a little is a continual train wreck and direct any debates until the eve the thing will expire. it doesn't work like so much in congress. >> again, i'm not hearing that this year with this particular expiration but that's an issue

in prior years. on the other hand, the sunsets to provide a forcing function to have policy debate. in this particular case if there wasn't a sunset, with the program just sort of continue because the wasn't the forcing debate and the wasn't a requirement that leaders from the intelligence community go up and justify it as a national security necessity to congress? on the other hand, i do see that value in these periodic legislative debates because it forces a conversation that might not otherwise occur. >> all right, thank you. let's push back to the closure of this particular program. i'm going to turn out to elizabeth goitein, , director of liberty and nationals could program at the brennan center for justice at nyu law school, author of many studies about surveillance and at the things

like that. also formally come herself. she was counsel to senator russ feingold when he was, one of the original critics of the surveillance. before that is look at her bio. you in the justice department, what's it like to pivot from defending to attacking? >> i should say that federal programs, the lawyers defend federal agencies in civil lawsuits across a range of areas. it is is the catch all branch t handles washington, all sensitive areas. believe it or not i am not one of those people who's please everything the government does is bad. who believes. i never worked on the case where i felt any sort of ambivalence about the position we were did to me. i was asked on a couple of

occasions to handle cases where i did have those problems and it didn't take those cases. >> so focusing on this program, the whole idea of the usa freedom act, 215, the moment snowden -- in bulk collection for american phone calls, bulk collection in general, rather than targeting specific people who have attracted suspicion or had some relevance to particular investigation, suck up the haystack and legal hunting for the new after we've ingested the haystack. usa freedom was supposed to end that practice. so four years later what is your verdict? did it succeed? >> let me take a step back and say more about what to think it is. before the patriot act was passed the government was able to acquire categories of business records. narrow categories that did not

include phone records that if it could persuade the fisa court that the subject of the records was a foreign agent, sorry, a foreign power or agent of foreign power. section 215 dramatically expanded this authority, like the government to obtain any tangible thing, not just business records, on low showing of relevance to on foreign intelligence the sketch. what we learned in 2013 with the still disclosure what the government was obtaining all of the phone records, american phone records held by several major phone companies and the fisa court had approved this based on the theory even though the vast majority of them still relevant to any investigation, there were likely to be a small number of relevant records buried within the usa freedom act in 2015, which turned on a sunset and there was a year or two of debate leading up to it, so that is the exception that proves the rule of the importance of the sunsets, that

was congresses effort to end the innocent bulk collection program. but more generally to prohibit bulk collection under section 215 and other authorities. congress tried to do this not by going back to the old foreign power agent standard but by requiring requests for collection to be tied to something called a specific selection term, or an sst. despite what it sounds like, a specific selection term is not necessarily a unique identifier and we never talked about section 215 authorities generally, not not the special phone records program to ben was talking about, but the general authority, the definition of sst includes a term that identifies a person account, , address, personal device or any other specific identifier. that may sound narrow into you look at the statutory definition. a a person is defined as an individual, group, entity,

association, corporation or foreign power. and the term address in usaid feedback explicitly includes ip addresses which can be shared by hundreds or even thousands of people. for the special call detail records program which is one part of section 215, the actual subject of collection has to be somebody recently suspected of terrorist activity but as ben was think the government can then get the second half which is is the phone records of anyone who is called by that terrorist even once. so at the time in 2015 many of us had some concerns that because of the open-ended nature of the sst definition and the second half in the call detail records program, the collection might end up being if not technically bulk collection in the sense of being indiscriminate, still quite bulky in the sense of polling and a lot of information about innocent people.

thanks to the transcript provision of the usa freedom act we have some insight into how those concerns have played out. so congress required the government to report the as bit number of targets of collection but also the number of unique identifiers used to gimmick information collected, a very tortured way of saying people whose indication records were suspected. the call detail records program between 2015-2018 the government reported fewer than 100 targets of collection. .. 14 million americans affected. >> because of the exponential

growth. one target needs to have a sphere around the target. >> no one requires them to make a 2nd cup but they are doing so across the board. >> we get ongoing records. for section 215, there is no second one. but the number of unique identifiers whose information is collected is orders of magnitude higher than the number of target so in 2018 there were 60 targets, more than 200,000 unique identifiers initially swept in. what that tells us is the government is choosing ssts

and/or targets for 4000 people or choosing records that include information about 104,000 people. and the investigation, that is the definition. in my view we have evidence to see that they are not working as i hoped it would work and as congress intended. >> will you respond to that? i want to turn to nemeth -- giuliani is legislative counsel, worked in the chief of staff's office at the department of homeland

security, on civil rights issues, and i would ask you to pick up on what you have heard so far but particularly addressing -- can you talk about whether it succeeded in other roles associated with that? >> when the usa freedom act passed a big goal was to address the collection problem but not the only goal. a significant goal to address systematic breakdown in transparency and oversight would allow the program to begin with. the snowden revelations revealed the nsa had been collecting phone records of every american, and the fisa court signed off for nearly a decade. a lot of people were shocked and saw that is indications that the fisa court was not

fulfilling its role to provide effective oversight and even going beyond that many members of congress when stories came out about the program expressed outrage they had not known about the program and they hadn't known about the program in years when they were asked to vote whether to reauthorize section 215 and certainly from a public perspective the public never had a robust debate on phone record programs and the extent of civil liberties, whether there are alternatives and they were kept in the dark, would never have known about the program after the snowden disclosures which a goal of the freedom act was to address this breakdown to put in place better mechanisms to make sure there was more robust review and to require transparency for

another collection program the public would know about it. we would have a debate and do something. from my perspective many of the reforms were improvements and to focus on two in particular, one is a big change from the freedom act was creating an amicus. the fisa court could appoint this amicus to participate in novel and significant cases that came before the court and could provide a perspective and in some cases potentially a prospective involving greater protection of privacy and civil liberties and based on what we know from disclosures since 2015 there were cases the amicus was appointed and they argued for greater privacy and

civil liberty protection and many cases where those arguments were rejected, the court said we hear these arguments but we are not going to adopt them. there are other situations where the arguments improved the decisions coming out of the court. is it better than where we were pre-2015? shore. if it is where we should be? absolutely not. one of the concerns that has come out in cases where the amicus's arguments have been rejected, they don't have a mechanism for review. the lower court rejected my view. i would like to appeal to the court of review and it appeared that was a proposal that appeared in prior versions of the freedom act but the political process was dropped because of that. we have an amicus that is less effective than it could be. the fact that the point is

discretionary and only insignificant cases to impact a broad range of cases when you might not have amicus to participate and provide that point of view. the second reform goes to transparency. the freedom act dealt with transparency. one of the most significant was requiring disclosure of novel and significant fisa court opinions and the idea is the fisa court was going to take a view of the law that was not consistent with what lawmakers intended, we should know about that so when we think to the collection program, part of what allow the program to continue was interpretation of what relevance meant that none of us thought was significant with what congress intended. relevant meant everybody and that was inconsistent with what

relevance had been interpreted in the past and what members of congress thought when they passed the law to begin with so we have seen some disclosures as a result of this provision that we don't know how these laws were interpreted prior to 2015. what was the government interpretation to what records they could collect? what was the interpretation, in what cases would they take additional protections when it came to minimization? they interpreted this to only be effective, we don't have insight into prior interpretations of the law and to what extent prior interpretations of the law continued to be creating to raise concerns. >> it is the case the government declassified

gigantic snacks before snowden. we don't know what the fisa court rulings were. >> we don't have all declassification of novel and significant fisa courts. we have sunday classifications in response to public pressure or foia request for litigation but what we don't have is a picture of how these authorities have been interpreted by the government and what they believe this is. that goes to the questions that emerge when we think of how different section 215 is from the way fisa operates prior to the patriot act. what we need to understand is what is the scope of how section 215 legal authority has been interpreted by the government and what that means going forward as technology evolves and surveillance practices continue. questions will come up such as

can you collect location information or other types of sensitive information. understanding the legal interpretation is critical for the public to understand what the scope of the authority is. >> i will try to heat things up a little bit and we want to go through the second round. was there anything from the critique that you wanted to respond to? >> to narrow it a bit i to think with respect to amicus that was an improvement in the process so significant or novel issues. one reason it was structured as an amicus were because of article 3 constitutional concerns that if you structured so that they had the ability to appeal or were required element

that you would run into standing problems with respect to article 3, that was a thriving concern for some members of congress and to the degree those things i changed in the end there will be some litigation. there was an effort to figure out how to thread that needle to have amicus in the significant cases where they will be most useful. we are very much focused on these big cases with questions how you interpret 702 all of which had amicus involvement and your every day fisa case has very few matters of law involves. it probably wouldn't make sense to have one in every instance. with respect to opinions we are down to a handful of ones that

haven't been released since 2003 when we started tracking the significance. a mix of disclosures, the vast majority of opinions have been released at this point and we are working through some others as well. with respect to the 702 program. >> we are going to move to 702. the program keeps growing and needs more finish than ever. according to the most recent transparency report we are up to 165,000 foreigners abroad whose collections are being targeted for collection of things like emails and text

messages and services like email and facebook and so forth. the number of people being targeted keeps growing and doesn't seem to show any signs of ever being turned off the way the phone records program is designed. in a faster way than you were planning can you sketch the 3 most important parts to understand about programmatic oversight. >> programmatically for 702, they are not individual targets. the court is approving three things at this point, three sets of procedures, what are the rules, before a particular

target, what do they have to show because they may only target someone who is a non-us person, reasonably believed to be outside the united states foreign intelligence purpose. in addition to that there are minimization procedures that control access, the use, dissemination, how long you can retain that information and there are special procedures, when can the government look at that collection using the identifier to search the records and find that? that is what we are talking about. we respectfully oversight which very much starts with the agencies themselves so you have rather robust programs in each of the agencies looking at individual decisions with respect to retention or dissemination and targeting.

mister snowden at one point could have walked in and targeted the federal judge. that was not true. it was never true. it had never been the case that one analyst could go in and put someone upon collection under 702. not only did the program not allow it from a procedures standpoint but the technology didn't allow it either. that starts internally. there is a substantial within the executive but outside the agency oversight program as well. that is a joint program between the department of justice and my office as director of national intelligence. they looked at every single one of those targeting decisions that are made. they look at the dissemination is made when they involve us personal information. if you share information outside the agency to another agency, that is called dissemination. they look at some retention

decisions and the instances where they are looking for information. that operates differently from the agencies that looks at every single one, that is not possible at the fbi. the department of justice goes out to 26 field offices a year-end reviews the queries of agents and analysts in the field to see how they are using the program. >> talk a little bit more about what we are concerned about. >> a discussion of internal executive branch oversight rules and people reviewing who got targeted and let's talk about external oversight. talk a little briefly about the congressional oversight. two intelligence agencies looking at the committee's shoulder on this but also have their own plots. it is not a happy normal place.

what does that mean? >> as described, there was a robust internal department of justice so when the provision was initially enacted, one of the important things the government said as far as oversight was the surveillance authority has oversight conducted by all three branches of government, then described the executive branch oversight, the second piece was the role of the fisa court which doesn't reveal individual targets but has substantial annual review in terms of revealing all the procedures under which this collection is authorized and used. very detailed procedures and monitoring of compliance. that was the second branch involved in oversight. the third branch is important too and the third branch is supposed to be the

congressional intelligence oversight that conducts the next level of oversight and that includes getting reports from the executive branch, and being reported to when it comes to significant compliance issues that are arising and that is the job of the two intelligence committees, when in the senate that are doing this work and one of the issues of current concern is whether or not that intelligence oversight process is still functioning as it should be and these committees go back to the late 70s. there oversight is supposed to be independent oversight by the third branch which provides an important check on the executive branch's activities. on the senate side which continued to operate in a political environment on a continued bipartisan basis, they've done a substantial

investigation pertaining to recent eventss, the same issues that were the subject of 2016 election interference but my perception in observing the committee from the outside has been they were able to continue to do their substantive intelligence oversight work. because it has become so intensely partisan and so intensely politicized, there is a political nature of it but intelligence committees were always a little more insulated from the hyper partisanship of some other committees and work that was going on. what i am concerned about from an intelligence oversight perspective is because of the hyperpartisanship that is taking place currently including the rule they found themselves in, being a central place for the impeachment investigation to take place,

the question i have is what is that done to the substantive intelligence oversight that is taking place. we don't know the answer to that question whether there is one part of the committee that is able to continue to do the work we are seeing in public and another part of the committee that is able to do the intelligence oversight, when the committee chairman have questions, when members have questions sent pose those to the intelligence community the intelligence community needs to know congress is unified in wanting to conduct substantive oversight, doesn't mean everybody will agree about policy prescriptions, the fact of doing oversight is more effective when done in a bipartisan way. >> that is raising alarms with oversight structures breaking down. >> under a high degree of

stress. >> aspirational or internal structures, but also referenced that there was a recent declassified fisa court opinion talking about problems with implementation of new rules for querying surveillance, could you walk briefly through what did we learn and what does it show about working in texas? >> short background but recall 702 allows the government to obtain communications with foreigners overseas including communications with america without getting a warrant and in order to do that the government has to certify that the target is a foreigner and not the american and have to

minimize the use, retention and sharing of the american status. minimization requirements have been interpreted remarkably to allow the nsa to share data with the fbi and allow the fbi status looking specifically for american communications to use in purely domestic criminal investigations. for the most part in the majority of cases the only substantive limitation on the use queries is the query has to reasonably return foreign intelligence information or evidence of a crime which is contained in fbi procedures and also a takeover requirement that the fbi keeps a record of a personal query. what we learned is the fbi had been violating the procedural

requirements. so procedurally the fbi had a record of its queries but was not indicating -- it argued it was too difficult. the fisa court did not buy that argument and needed to the surveillance court review on appeal. substantively the fisa court found fbi procedures in practice violated the fourth amendment because the fbi was conducting large numbers of personal queries that were not likely to return for intelligence information or evidence of a crime. multiple one off incidents, accidentally or for improper personal reasons, not sure why it is not configured to allow circuit judges you can search on your own but more systemic problems including a phenomenon

called batch queries where the government is running 70,000 queries at once of us persons based on the idea that even though most were not going to return for intelligence evidence information of a crime, they were likely to return ahead and if it sounds familiar it should. it is the same rationale the nsa used for election of american phone records. it is in historical context which is failure of the government to comply with rules -- in 2011 the fisa court learned that the nsa had been handling data in a way that violated the fourth amendment so the court imposed a certain rule for handling the data. five years later the fisa court

found the nsa had been regularly violating these was. for 10 years the 702 program has been operating in violation of the fourth amendment. often when people say has there been abusive the program the government position is only that violations were unintentional, then that is not abuse. a 10 year pattern of constitutional violations rises to a level of negligence that constitutes abuse but the more important question, occurred to me the more important question, whether the privacy of americans is adequately protected the answer is clearly no. one of the reasons i support a requirement for the government to obtain a warrant is because of this.

>> you raised a factual issue. stop me if i am wrong, i think there is an apples and orange issue where the critique of snowden, you can look at judges but now he couldn't because it takes more than one person to target someone which would be to put in their email address or phone number, your critiques are people searching for their relatives but querying the database as already collected, you can't do that and that is how the statements are consistent. >> the snowden statement -- >> i was going to ask you to jump into notice of fisa information, no cases. only 4 and half minutes left. trying to take on a new complicated topic leaving time to respond. >> the only thing i will note

is for use the fbi said they couldn't report the number of personal queries and now we know they will be able to report it raising questions as to whether the agencies will publicly release the number so we can have a debate how often they are doing this. from my perspective they should do it as part of the reauthorization. >> putting on your government had what do you say? >> a couple things. with respect to the fbi core issue there are separate issues which are how the tracking query, the substantive standard is it has to be likely to return foreign intelligence information. with respect to intentional someone trying to query their family or relative, a couple instances where someone mistakenly queried themselves. >> and fbi cam.

>> yes. >> what the court said goes to the second issue. the second issue goes to instances where whether a query was reasonably likely to return foreign intelligence information, and it was an instance where there was a query conducted. results weren't reviewed the query was conducted and people who have fbi colleagues still think it is a waste. >> the privacy violation was against everyone at the fbi. >> it was large and tens of thousands of cell phones or email address. the privacy impact might be more limited given it was reviewed. now human, the query was conducted, no human looked at the query. >> there's something

unexplained about that. the fbi general counsel objected. >> this is compliance. not trying to walk around that but it was identified through the compliance program we haven't continue to have. to remedy that, after litigation, building systems they didn't have the for but one is to require any time there is a personal identifier to have contemporaneous justification for review including my office in terms of doing that but that requires some sort of determination of whether it is a us person or not. what they were doing before is they weren't answering that question but applying the standard more broadly, about likelihood to return foreign intelligence information and i'm not going to use resources

to figure out the citizenship of the person running the query against the running the query when it is appropriate to run the query. >> i would like to make a point. the back and forth been is explaining between the court and the fbi has to do with the court responding to each individual instance of when an agency is doing this particular thing wrong with that particular thing wrong and we have a system where the government and the court are working out details of how procedures actually work in the bigger picture issue the distance being resolved in this process, at what's point is a history and a continuation of a variety of different compliance problems make it look like the system can't function properly.

i'm not sure how the bigger picture issue is going to be resolve because the court and agencies are not going to work that piece out. it requires higher-level policy engagement. >> that is a fantastic take away that resonates, which was the decision to shut down one of these programs after an unending series of compliance headaches but this doesn't look like it will be shut down so the fracas will continue for the next year's surveillance but i would like to say thank you for listening to us and your great thoughts and your back and forth which was quite interesting and we are out of time. [applause]

[inaudible conversations] >> i now want to move to our first set of flashes, a wide variety of topics, there is not time to have a panel on everything that deserves covering in the broad universe of surveillance issues. alan butler is the general counsel, the question of how often prosecutors use the courts to track people using locations surveillance orders. the answer, we are not sure but

we are working to dislodge that information. >> thank you to cato for hosting me. my organization has been working on surveillance oversight issues for many years. one thing i focused on is locations surveillance to give a brief background on the issue, generally over many decades, law enforcement has used a variety of efforts to track the locations of individuals and we have seen those methods change over time but also questions arise about what legal and technical standards and restrictions are in place that should be in place for that type of investigative activity and surveillance.

in the 1980s the supreme court tackled the question of what the legal standard would be for law enforcement action to track individuals using beepers that were the old school surveillance you might see in the tv show dragnet that were small radio devices that would be implanted in a physical item that was placed in a car, and something that reads the signal strength that can follow a car as it derives from point to point. the supreme court decided there was no expectation of privacy in the transiting of public roads but a car with a beeper in it pools into a private residence law enforcement is not allowed to track it. but the techniques e-filed and got more sophisticated over

time and in the 1990s law enforcement began developing special technology to track cell phones and other mobile devices and cellular devices, these were originally developed in military context and deployed by law enforcement, commonly referred to as i and si captures sometimes called stingrays. these devices were being deployed without warrants, being deployed without knowledge of most people or of the courts. they were authorized under an application for pen register which in the 1970s meant an order to get a particular phone number but that was used in the 1990s and don to authorize direct tracking of phones using special radio hardware that could identify nearby devices and measure their location. through the 1990s into the

2000s, law enforcement use other forms of surveillance including physical gps devices they might attach to vehicles or other items. that was dealt with in the us versus jones case in the supreme court and heard in 2011-12. the supreme court decided the attachment and use of a gps device to track the movements of a vehicle was a search under the fourth amendment distinguishing the earlier hits from the 1980s and reinvigorating the fourth amendment standard around surveillance but throughout the 2009 -- into today, the most prevalent locations surveillance is the collection of data from cell phone companies about the towers a phone is connected to. a city like washington dc there is a huge number of cell phone

towers necessary to support all the devices we use every day so the density of towers is quite high and that means knowing which tower a particular phone is connected to, a good piece of information to know where the phone user is located at times so historically wet developed in the 2000s was a method where law enforcement was getting historical and real-time cell phone location data using a hybrid of the statute i mentioned before that allows ongoing monitoring of phone call data and also what was referred to as 2703 orders on the electronic communications privacy act which allow the collection of subscriber records like cell phone companies. the combination of these authorities was enough to give

them both historical and real-time location data related to specific cell phone. there was a push by magistrate judges around the country to call into question this assertion by the doj which hadn't been scrutinized by any court, the magistrates were getting the actual applications and including texas and new york called into question the legal authority and was resolved by the supreme court in the carpenter case which was a case where an individual had been tracked by cell phone data and the supreme court ruled the collection of cell phone location data is a search subject to warrant requirement so that happened in 2018. prior to the carpenter case and in the leah to carpenter, there was a series of requests from the government of justice to get a handle on how prevalent this activity was. how many of these orders were out there. we filed a request seeking

disclosure of these location data warrants with the department of justice and we had to sue because they hadn't responded and this gets to the issue of surveillance oversight which we fundamentally don't have surveillance in the context of location data tracking or the collection of electronic records and otherwise. contrast that with the wiretap act which is title iii, for recording and interception of communication in real time where we have a robust regime, congress enacted in the 1960s carried out to this day. the administrative office compiles this comprehensive report and releases it every year. epic in the number of groups that historically assessed, reviewed, made available these

reports, allows us to scrutinize wiretap authority including figuring out what types of crimes are investigated using wiretaps. how often do they lead to convictions and the like? we don't have that data when it comes to locations surveillance. including pen registers, gps tracking, cell phone location data. we do have a lot more information about foreign intelligence surveillance. there is statutory authority and requirements there be annual and semiannual reporting activity. what do we do when we don't have transparency reports? epic is trying to find out as much as we can about what is happening so we use the other tool at our disposal, the freedom of information act. a quick note, on carpenter, following the carpenter decision the department of justice does not get that data

with section 2703 anymore, they have to get warrants. we don't know how many warrants they are getting. we filing a request after carpenter so we have surveillance applications being sought by federal and state prosecutors and issued by federal and state courts. we focus on the federal level and the department of justice and we know because they are seeking these applications and obtaining surveillance orders they have records of this activity so we focus on surveillance orders issued in 2016, 2017 and with new requests, 2018-19 and we ask for the negative office of us attorneys to give us a copy of every order that was issued for location surveillance. we spent more than a year litigating this case and the answer so far has been we don't know. the department of justice says there is no way to search for these things.

we obviously pride beyond the initial answer that we can search for this because they are not in the general election database. they never disputed they have the records. surveillance voters are used by prosecutors prosecuting their cases so we pride further and said can we focus on a particular office? the most sophisticated in the country like the us attorney's office in dc or new york. do we have a method for tracking surveillance applications? both of them came back and said no, we don't track this at all and we can't search electronic files because we have so many files with research that it will break our computers. we can't search the permit of justice files, there is no way to search electronic records of the prosecutor's office.

they are subject to foia. we said these large sophisticated offices can't search electronic files. how about the smallest us attorney's office in the continental us and the eastern district of oklahoma and they simply said we can't search that. through litigation we learned that office has a grand sum total of 1 tb of files and they can't search it. it will force them to go through these records we do have. we know prosecutors in some of these offices have been beginning to integrate these files into case management and other database systems and simultaneously there has been an effort in dc to uphold in the reporters can be for freedom of the press to unseal old surveillance orders for closed cases and as a result of

that case, there is now an agreement between the district of columbia, federal court in the us attorney's office to issue unsealing orders and reports twice a year that categorize all the surveillance applications that are filed. you can find these on the district of columbia federal court website. understanding orders you can see a list if you look at the report filed last april you can see a list for a 6-month period of every application filed in federal court in dc and that includes information about whether it is an order for cell phone location data or email records. so no question they exist but we are trying to uncover them to add to public information about surveillance and how prevalent this activity is because we don't know enough

about how often this authority is used and in a bigger conversation about what legal restrictions should be in place over different types of surveillance, have that type of information but he did learn through the course of our case the day the carpenter decision was issued the computer crimes division of doj issued guidance to all federal prosecutors that said you do have to obtain warrants to get this type of cell phone location data. you can find more information at our website, epic.org and some other materials if you want to learn more. [applause] >> thanks. before we head to lunch, our second talk will be from

gabriel rothman, the from the committee for freedom of the press. those old enough to recall, may remember once upon a time it was fairly unusual for leaks of classified information to reporters to results in a prosecution of the leaker. it was understood to be a place of doing business in an open society where a function of the press sometimes required classified information would not make its way into the newspapers. but over the last decade we have seen an explosion of the espionage act to target spies, used as a way of going after leaks to the press. the reporters have been tracking that and we will provide details of that explosion of prosecution.

>> thanks for having us here to talk about the treatment of journalistic sources as spies under the law. the reporters committee, we are a legal services organization. our attorneys provide legal services for journalists across the country primarily in open records cases and court access cases but we were formed 50 years ago in response to an unprecedented wave of subpoenas to journalists telling them to disclose the identity of anonymous sources. the reason that is important is obvious. if you can't confirm, if you can't assure your source of confidentiality they won't be your source, sources dry up and newsgathering is hard.

this particular issue, the use of spying laws, specifically the 1917 espionage act passed shortly after america's entry to world war i against journalistic sources is a core component of this mission to protect news gathering and reporter source confidentiality. i don't have a lot of time so i will be pretty high level. what i was going to do, you can see this is one of the few resources we put together on our website that you can go to the tracks the proliferation of these cases over time, specifically over the last decade and also a comprehensive chart we put together that lists all the media leak case is not just under the espionage

act but going back to the founding of the country, cases where there has been cooperation between the press and the government over efforts to disclose the identity of confidential reporter sources so i urge you to look at that. talking about the espionage act, we are talking something relatively specific. the espionage act was passed in 1917. there was debate in the congressional deliberation before passage of that law over whether it would apply power to president woodrow wilson to actually block the publication of national defense information to newspapers and punish it after the fact. congress expressly rejected those provisions but the law has evolved over time to include provisions that apply

to traditional spine, transfer or sale of military defense secrets to hostile war powers but also provisions that, read in isolation, simply apply to the transfer by a person with authorized access to military defense in formation or person with unauthorized access to defense information to a person not authorized to receive it and those provisions read in isolation and literally what apply to the leak of military defense information to a reporter. historically prosecutors have been forewarned from using these laws in this way. throughout the entirety of the cold war if there were a smattering of cases the vast

majority of them were unsuccessful. you can see from the start starting in world war ii there were two cases that were expertly contemplated against the press, once, a grand jury was convened in chicago to potentially prosecute a war correspondent and the chicago tribune for publishing a story about the battle of midway. the grand jury refused to indict because the navy would not provide codebreakers to testify about the potential harm. the grand jury refused to indict. the second case resulted in much reduced charges although a plea agreement for a left-wing magazine called and are asia, in 1957 there was a case, the first express case under the espionage act against an army colonel involved in the jupiter missile program. his case was resolved in much reduced charges and he will

continue to serve and in 1971 you had the most well-known case, the pentagon papers, prosecution of daniel ellsberg and anthony russo. that case resulted in dismissal because government conduct, finally in the mid-1980s, there was a case about a navy and was named samuel morrison resulting in a conviction but after a lobbying campaign after he served his sentence his conviction was upheld on appeal in the late 1980s, daniel patrick moynihan lobbied president clinton for party -- pardon, not just because of anything notorious in the case because of the particularity of his conviction, prosecutions were exceedingly rare. in the early 2000s you had a couple cases that ostensibly involved leaks, but they weren't exactly like the morrison case.

you had one case involving the american israel public affairs committee, two employees, and alleged conspiracy with pentagon analysts disclosing information about iran, there were allegations in that case, disclosures to the press. that case resulted in much reduced charges for the insider, the pentagon analyst, and there was the valerie plane disclosure the resulted in prosecution of scooter libby. that case started as a case not under the espionage act but a law i will briefly touch on in a second that specifically applies to disclosure of the identity of undercover intelligence officers and that case resulted in conviction of libby under false statements but it wasn't a pure leak case. since 2009 starting with a case

against an fbi linguist but ramping up in 2010, there has been what i am calling 18 pure source cases in the sense that these cases, not all of them have resulted in conviction or ultimate charges under the espionage act but they all were based on the public disclosure of government secrets through the press rather than what we would consider traditional spying and those 18 cases include the names we heard today already including chelsea manning, edward snowden, also for instance general david petraeus who accepted the plea agreement, but also in a leak case and so those cases breakdown equally between two

administrations which is an important point to make. this is not limited to the trump administration. the investigations that led to cases since 2009 started under the bush administration but under the obama administration you saw less cases depending on how you count. i urge you to go to the website and get into the numbercrunching. it can be in the weeds but we are talking about 18 cases and two other cases that look slightly different in that they involve public disclosure, but not in the journalistic context. one of those cases i will talk about in a second. you have 9 or 11 cases under obama could. the trump administration has brought these cases was a couple things to note. the obama administration had several direct conversations

between the press and the government. there were a number of subpoenas issued to reporters, not just the one that was the most well-known. there was an associated press subpoena that covered more than 30 phonelines used by 100 reporters and a search warrant that was sought and obtained for the gmail of a national security reporter. both of those instances resulted in changes in internal guidelines at the doj governing when and how prosecutors can investigate the press. the obama administration had that and under the trump administration we see a number of cases, 18 or 20 cases depending on how you count, 1109 under obama and the rest under the trump administration but only one in the trump

administration were records restarted directly from a reporter in the jace wolf case, former security director for the senate intelligence committee. that is the record as we have it now. i don't have a lot of time. let me touch on cases that were brought to the trump administration. the prosecution of daniel hale, a former contractor in the intelligence committee charged under the espionage act and under a provision of the espionage act that specifically applies to signals intelligence, leaking information about cia drone operations. the hell case is interesting because for the first time,

seeking indictment expressly on first amendment grounds and making arguments that haven't been made before. and the charges against him, the courts, the district court and appellate court rejected those arguments saying the effect on news gathering and journalistic sources is hypothetical. mister morrison -- mister hale is arguing we have a record since 2009 of these cases being brought of being won that did not exist during the morrison case. and in life prosecution one of these cases was the second case i will cover, the indictment of julian assange, founder of wikileaks.

this case poses complexities, mister assange was indicted under one count of conspiracy to hack into the secret level classified network by the department of defense. that charge is complicated because it included -- it is a conspiracy claim and the agreement, the solicitation and publication of classified information, but it requires that the government allege the service of that conspiracy and that is to crack the password so it was a kink in the door in that case. that was supplemented with additional indictment last may with 17 charges of the espionage act. the 17 charges are not based on

the password cracking allocation and further, three of the charges, this is what is relevant in the assange case, three charges are based on pure publication theory. it is a little legal but the government needs to show a guilty act, something that you do that triggers liability under the espionage act. that single act in three of the charges in the assange case is the posting of classified information online. .. material failed to redact the names of assets and informants, u.s. assets and informants. that's true the reporters committee said it's an ethical and practical distinction between wikileaks and assange and other news organizations that reported on the same vitriol. it's not a legal distinction and there's nothing in the way the government hasle