this has undermined your position as inspector general to conduct your legitimate investigative oversight responsibilitieses. would that be a fair statement? >> yes, that would be a fair statement. >> the other thing that would concern me is, using some language, or exceptions that are in the law, in the case of justice, and the peace corps, to obstruct an investigation, or even worse, to cover up. particularly concerned about the sexual abuse instances. now, some of these cases, the staff had told me, may be like peace corps worker, or some locals on peace corps volunteers, is that the case? >> yes. >> again, it appears that it is

a sort of a blatant cover-up of sexual abuse cases that some might embarrass the agency. i guess you expose yourself when you send people to foreign lands, or on any mission to any locals, or foreign nationals taking advantage of american personnel. but i think -- how prevalent is the case of problems with peace corps workers being involved in these instances? >> usually it's a host country national involved in the assaults. from what we gathered, the information we gathered, it's usually volunteer in about 47% of the case. >> how many? >> 4%. >> that's very embarrassing, i would imagine to the agency. you know, again, i think we have a particular position of

responsibility to deal with that kind of action. and also, i think you should have that authority to uncover, again, what's going on, and expose it. a couple of questions, because we've -- the inspector generals have been under attack for a number of years now. several ways of attacking them, one, get rid of them. we went through that in the beginning. i remember gerald walpin, and he was removed. i think the committee let it be known that that was not going to be tolerated. although, they did get away with that particular instance. then in appointing attorney generals, i'm told, there are 13 vacancies, about 15%, 20% of the inspector general positions are vacant, is that about right, mr. horowitz? >> i think that's right. >> mr. elkins? >> i don't have the statistics.

>> all right. >> it sounds like it. >> these are the numbers i have. so if you don't appoint them, you try to get rid of them. and then you don't cooperate with them and obstruct them. those are all very serious problems. but i appreciate, mr. chairman, your bringing this matter to the attention of the committee. >> i thank you, mr. mica. the gentleman yields back. we go to the gentleman from virginia. >> thank you, mr. chairman, for holding this hearing. i find myself in firm agreement with yourself and with the ranking member in your opening statements. ms. buller, in my other committee, the house foreign affairs committee, we had some legislation dealing with the peace corps and a whole issue of sexual assaults and how best to handle that. there were a series of investigations, and investigative stories, really that were highlighted how poorly

historically, the peace corps had heretofor managed cases of sexual assault among volunteers. we introduced legislation to try to address that. so i'm particularly concerned to find that they, on the subject at the peace corps, there isn't full cooperation with your office. so that's the context in which i look at particularly the peace corps issue, and the role of the gi. you raised questions about the peace corps, correct? >> yes. >> what was the nature of that testimony? >> it was the same issue. >> could you speak into the microphone? thanks so much. >> it was the same issue that i am testifying about today. it's the lack of access to reported information. >> specifically, in 2011, we

passed the cape puzi volunteer protection act, to which i just referred, requiring the peace corps to require a restrictive reporting system to give the volunteers the option to report sexual assaults on a confidential basis. the ig has required to conduct a case review of a statistically significant number of sexual assault cases to evaluate the effectiveness of that policy, and provide a report to congress, is that true? >> yes. >> due to the peace corps' interpretation of that act, the agency, however, withheld from the ig certainly personal information about victims, as well as sexually explicit details about sexual crimes, is that correct? >> yes. >> on may 22nd, you and the agency signed a memorandum of understanding. under that agreement, the agency agreed to provide you with access to all information

related to restrictive reports, other than clearly de find personally identifiable information, and explicit details of sexual assaults, is that correct? yes. >> since that mou has been in effect, has your office requested any sexual assault case information under the mou from the peace corps agency? >> we have requested crime incident reports for program evaluation that we were going to do. >> did you say five? >> no, two. well, we have one program evaluation, and we requested all of the crime incident reports, including restrictive reports for that country before we went into evaluation. there were two reports, we did get both reports, with the redactions. >> with the appropriate redactions. >> yes. >> from your point of view? >> according to the mou, yes. >> so since that mou has been put into effect, you have had

requests, and you have found full compliance on behalf of the agency? >> yes. >> is it your expectation that the case information that you did receive is useful to the work you're undertaking? >> it's useful to the particular program evaluation we're doing at this particular point in time. the problem that we have is, when we are going to do our case review for the puzi mandated work, it requires sampling to do that. and the peace corps has no case management system, so that everything's compiled in one place. we have records in medical. we have records in the victim advocate office. we have records all over the place. and we don't have any way to track how a volunteer is treated after they've been assaulted, because there's no case management system. >> even now? >> even now, yes.

>> and would that case management group also include regal actions? for example, if somebody's been sexually assaulted, presumably there's a legal case pending in the host country? >> if there is, it should be included in the records, yes. >> but it's part of a case management problem, that's also somewhere else? >> if the case was actually taken into court, it would no longer be a report, so we should have access to that information anyway. >> do you? >> yes, we do have access to non-restricted reports. the problem is the default for the peace corps, every sexual assault that's filed is automatically restricted until a volunteer determines to make it otherwise. so the universal restrictive report is quite large. >> thank you. mr. chairman, i just want to end by saying, this is a particularly troubling case since congress on a bipartisan basis actually addressed this topic, the peace corps, and the

incidence and management of sexual assaults of volunteers abroad. and to find three years after passing that act, that we're still finding problems with the peace corps, that directly affect the victims. because their cases aren't being managed efficiently and properly and sympathetically, and the gi has not had until the mou full cooperation from the agency. it's troubling indeed. and to me, it circumvents the letter as well as the spirit of the law congress passed to try to address this very sensitive, but real issue affecting our peace corps volunteers. thank you, mr. chairman. >> your comments? i now recognize the gentleman from utah. >> i thank the chairman. and thank you, the three of you, for being here. you play a vital role in the checks and balances. and just good government.

i thank you for your time and your dedication, to you and your staff. i would ask unanimous consent to enter into the record the letter dated august 5th, 2014. this is a letter to chairman issa, and cummings and carpenter and coburn from the 47 igs. >> without objection, they're entered. >> the undersigned inspector generals right regarding the serious limitation on records that impeded the work of inspector generals from the epa and department of justice, on page two last paragraph, moreover, the issues facing the doj, oig, the epa oig, and the peace corps oig, are not unique. other inspectors general have from time to time faced similar obstacles where it trumps the clear mandate of the ig act or the agency's imposition of

unnecessarily burdensome administrative conditions on access. it is extraordinary that 47 inspectors general have issued this letter expressing this concern. but i'd also like to ask unanimous consent to enter into the record a letter from the director of the office of management and budget dated september 9th, 2014. >> without objection. >> let me read a sentence here from that response from the director of the omb, and then i would like each of you to respond to it. because the administration doesn't seem to think there's a problem. with this letter, paragraph 3, the last sentence says, overall, the numbers reported by the igs demonstrate the federal departments and agencies in this administration value the work of ig offices. and are almost uniformly successful in getting them the information they need to perform their responsibilities, end quote. this letter, if you were to read this letter, the office of

management and budget issuing a letter a full month after the 47 igs, they don't think there's a problem. how do you respond to that sentence? i'll start with mr. horowitz. >> i can only speak from experience and what i've heard from other igs, which is we have faced road blocks in several of our reviews, untimely access. where we have gotten it, it has taken a fair amount of time. i think the other igs have had their experiences. i know from conversations with fellow igs, while they haven't had lawyers come forward and say we can't legally give it to you, they've had issues with getting materials in a timely manner. that is a very significant issue for us. >> so when it says, almost uniformly successful, how would you characterize what you're able to access and get right now, particularly from the fbi? >> it has been an extraordinarily difficult issue for us, now for several years, to get prompt, timely access to

materials. >> mr. elkins? >> i think there's a disconnect. and i think that statement that you just read capsulizes the disconnect. on the one hand, i think what we have seen here is that we hear from time to time that, well, you know, there is substantial cooperation with the oig. i mean, 80%, 90% of the time, you know, there's no problems. you get what you ask for. but that assumes that the other 10% to 20% of the time that we're not getting what we ask for is okay. and that suggests that it's a moving target. and that's a very slippery slope. and that is exactly i think where we're here today in talking about these issues, because there's this assumption that most of the time we cooperate. and that's where the focus is at. but the real issue here is, what about that 10% of the time that

there is no cooperation? and that seems to just keep jumping around and jumping around. that's the problem. and i think that message says that it's a broad problem with omb, and a lot of agencies. >> thank you, mr. elkins. ms. buller? >> i agree with my esteemed colleague. from our perspective, we've had an agency issue opinions -- or issue policies and procedures specifically stating that we can't have access to something. so it's very difficult for me to understand how it's not a problem. and i think the fact that 47 other igs have at one time or another, maybe not all the time, but one time or another had problems, should be an indicator that there is a problem. >> well, thank you. again, i appreciate the great work that you do and look forward to hearing from you further. i yield back. >> i thank the gentleman. i recognize the gentleman from

pennsylvania, mr. cartwright. >> thank you, mr. chairman. and thank you, inspectors general, appearing here today. as this committee has previously highlighted, the offices of inspectors general are essential to the efficiency of our federal government. they help hold agencies accountable, identifying misconduct in programs and by personnel. they can highlight the holy trinity of waste, fraud and abuse, guaranteeing that the american taxpayers get the most bang for their buck. the position of ig is a difficult position to hold. igs are cast with investigating alleged abuses, among those with whom they work. of course, however, a balance has to be struck between confidentiality and privacy rights of victims, as well as whistleblowers, and the needs of the inspectors general. ms. buller, i listened to your

testimony closely, and also your questioning by representative connelly. as you noted in your written testimony, the oig recently reached this memorandum of understanding with the peace corps on how best to comply with the peace corps volunteer protection act. obviously many victims of sexual abuse and assault choose to report that conduct anonymously out of fear of retribution. and for their safety in general. and there's an irony, isn't there, in that the puzi act was intended to provide tighter oversight to make sure complainants' anonymity was protected. in fact, puzi was murdered by her attacker, when the peace corps mishandled her complaint,

and her identity got out. and i think mr. connelly has made that point. but there's this irony that the kay puzi act was intended to have oversight over the confidentiality, and now we hear that the peace corps is saying that because of the need for confidentiality, they don't want to cooperate as much with the oig. and i see that. and i think probably a good thing to do this morning, ms. buller, would be for you to elaborate. you touched on it briefly in your testimony about how professionally your staff is, and how careful you are with anonymity. will you elaborate further and tell us more about systems, and procedures in place to protect anonymity. >> sure. all of my staff is required as is the peace corps staff to

comply with all of the laws that protect personal identifying information, such as the privacy act, hipaa, things of that nature. we are all required by law to comply with those, the same way the peace corps staff is. furthermore, my investigators are trained investigators. we must comply with all of the guidelines from the attorney general. we have full law enforcement authority. we participate like any other law enforcement organization. my evaluators, when they go out to a post, they go to the volunteer sites and sit and interview individual volunteers and they tell them that they will not use their name. because they're trying to find out how well peace corps is actually supporting those volunteers. so they do not use their names. they aggregate information and bring it back so we can issue a report to the agency to tell them that you have these problems in this area, that volunteers don't feel supported in another area, things of that nature. we are very professional staff. and we do comply with all of the

federally mandated laws. >> i thank you for that. and you did say in your testimony there's never been an instance of the office of attorney general being implicated in an improper disclosure of an identity, is that correct. >> yes. >> and there never will be, will there? >> no, there will not. >> well, i thank you for testifying here today. and we take your testimony seriously. >> thank you. >> mr. chairman, i yield back. >> i thank the gentleman. and before i recognize myself for five minutes of questioning, i would ask that additional documents that follows up the preceding documents, a letter addressed to the director of office management and budget on these issues and signed by our chairman and ranking member as well as corresponding chairman and ranking member of the

senate, be introduced into the record. without objection, it will be introduced. i thank the witnesses for being here as well. and carrying on with this continued investigation, to make sure that your work is accomplished. mr. horowitz, i still remember our first meeting in my office when you came in after your appointment, and how direct you were about saying my job is to be the job of oig, is supposed to do, and get to the bottom of the issue regardless of where we find ourselves. and i appreciate that. but let me ask you a question relative to a fairly high-profile investigation that we've been involved with, as well as you. were there restrictions or limitations on your ability to access documents in your investigation into the operation fast and furious? >> that's one of them, the investigations where the issue was first raised back in 2011 to

our access. >> did you have to make document requests in writing? >> we did. and we -- the issues came up both in the context of our request for grand jury information, which as you know given the case was a criminal case, were many. as well as wiretap information, as you know, from our work, there were many. >> how long did it take for you to get access to those documents? >> it took many months for this issue to be resolved. and it was resolved through an order being issued by the leadership, not through our independent access pursuant to the ig act. >> elaborate on that last statement a little bit. >> yes. in our view, we have a right as congress has laid out in the ig act in section 6-a, to get the materials we ask for. when we ask for materials, we ask for relevant information, responsive information, and in our view we're entitled to that by law, congress has been clear.

the fbi, other components in the department, have taken the view that the ig act perhaps doesn't mean that. indeed, we've been told that that was the legal counsel's preliminary view, that the ig act didn't meant what it said. as a result, it required an order of the attorney general, deputy of the attorney general, to the component that said, i find these reviews to me as the leadership of the department, and therefore, you can give the ig those materials. >> how has the requirement that the oig obtained written permission to access documents affect your office's ability to conduct a complete investigation into the matter? >> it frequently has the impact of delaying our views. not only because we have to go through that process to the leadership of the department, but also because, frankly, it encourages other objections by other components of other issues. for example, personally

identifiable information that ig buller has talked about. that issue was thrown up in front of one of our reviews on sexual misconduct by both the fbi and dea. that's a frivolous objection. and after many months of back-and-forth was withdrawn by the agencies. and we finally got the material. >> how does all this affect your independence. >> it compromises it, in my view, entirely. i should not have to go to the people i oversee for approval to get records. congress, i don't think, intended that. that would undercut in every way our independence. >> we certainly didn't. let me ask each of the panelists. other than the reason described in the letter from 47 igs, what tactics do agencies use to deny oigs access to agency records and documents? ms. buller, i'll start with you. >> in my case, we've had

instances where our situation in the issue on the kay puzi act has bled into other areas. for example, they redid the case, or crime reporting management system for standard reports. and when they did that, we were denied access to that. for no reason. because they were not restricted report. so we had to go back to the general counsel and i actually had to go to the director of the agency and make a personal plea to get the information that we had been getting all along reinstated to us. it just -- once you start down the road where there's preventing you from getting information, it pops up in different places, in unexpected places. >> mr. elkins? >> in my case, what i see is stonewalling, to a large extent parsing out information. you know, you ask for, you know, ten pieces of information, and

you get two or three pieces of information. and then there wants to be a discussion on the other seven pieces of information. and then there's continually fighting and going back in meetings, and at the end of the day, a year later, you still don't have the information. and in the back of my mind, what i hear is cha-ching, cha-ching, cha-ching. that's the taxpayers' dollars going out and being used, on the agency side and my shop side, to be able to solve an issue that the ig access, when we ask for information, we're supposed to get it immediately, and properly. and if we had received it at that time, the cash register wouldn't continually be ringing. that's what i say. >> mr. horowitz? >> as a result of the position that the ig act may not mean what it says, the fbi has put in place in our instance their general counsel reviewing all of the materials and all of our requests for materials before they come to us. that requires reviews by lawyers at the fbi.

it delays us getting access. and the concrete example of what that means, in a review but are doing, we asked one of the subcomponents within the fbi for an organizational chart. they told us they couldn't give it directly to us because of the standing requirement within the fbi that the materials have to go through the office of general counsel first. that should not be happening. that is a waste of money, as ig elkins just said. we have entitlements to the access to the records. i'm not sure what use there is of the resources of the fbi to go page by page through records before giving it to us. >> thank you. my time has expired. now i recognize the gentlelady from illinois. >> thank you, mr. chairman. the inspector general, the key is making the government more

honest and effective. i have seen firsthand their work. and obstruction of their work is simply not acceptable. so i take the concerns being aired here today very seriously. and hopefully the message my colleagues and i are sending today are loud and clear. i'd like to discuss the concerns i have with epa's office of homeland security in particular. and mr. elkins, on may 7th of this year, the assistant inspector general for investigations in the epa testified before the committee, and raised a number of access concerns. specifically, mr. sullivan expressed frustrations that the epa's office of homeland security ohs was denying access to important classified threat material that was impeding your material to investigate the threats, the epa facilities and its employees. he also testified that ohs refused to share misconduct cases with his office, because

ohs believed it was, quote, back door law enforcement organization in itself. and finally, mr. sullivan raised concerns that ohs did not recognize the ig's statue thor ti into the computer net works, denying access to classified information related to possible cyber intrusions. is that a fair summary of your concerns also with the ohs office under epa. >> yes, ma'am, that is a fair characterization. >> thank you. so i understand from your testimony today that you continue to have problems with access to information from ohs, is that correct? >> yes, ma'am, that's correct. >> in june, june 19th of this year, epa's administrator mccarthy sent you a memo entitled working effectively and cooperatively, is that correct? >> i don't recall that exact

memme me memo. >> working cooperative and effectively? >> oh, yes, i do remember that. >> it attempts to construct a framework for better cooperation between ohs and your office. and section 5 of the memo lays out a dispute resolution process. has that process been used by your office since receiving the memo? >> well, i can speak for my own personal opinion. no, we still have the same issues that we had at the date of that letter. so if there was a dispute process, it hasn't worked. and i haven't been a part of it. >> okay. do you think it could or should be enhanced in the resolution process, or do you think that's hindering your work in general? >> personally, i think the ig act says all, means all. to have access to documents and individuals, that's what it means.

i'm totally against the process that indicates there should be wiggle room. >> in resolving this impasse you're having with epa's office of homeland security, my understanding from your testimony, what you just said, we're still hitting road blocks, is that correct? >> absolutely. >> what steps do you think would be helpful to resolve some of the disputes that you're having and how could this committee be helpful to you in that process? >> well, i think ultimately the administrator needs to send a clear message that the ig act requires absolute cooperation, with the ig. if that message is sent, i think everything would change. until we get some clear message from the administrator to that effect, i think the status quo will continue. >> do you think the inspector is supporting ohs's position that they are the de facto law enforcement agency in the epa? >> i'm sorry, could you repeat the question, please?

>> do you think administrator mccarthy's position, from what he has said, with this -- by supporting this memo, working effectively and cooperatively and not sending out this -- you know, the statement that you should have full access, do you think he supports what ohs believes that they are a de facto law enforcement organization within epa? >> well, you know, i don't want to put words in the administrator's mouth. but the end result is that, you know, the status quo continues. so i can only infer that the administrator agrees with that. >> thank you. thank you so much, mr. chairman, for having this hearing. to the extent this committee and its staff can be of assistance to address this impasse, we certainly should be willing to help. again, mr. elkins, thank you for the work that you do for us and for the american taxpayers. >> thank you, ma'am. >> i yield back to the chairman. >> thank the gentle lady. i recognize the gentleman from oklahoma.

>> thank you, mr. chairman. thank you all for being here and for your work that you do every single day for the american taxpayer. we really do appreciate it, what the office of the inspector general does. every agency is extremely important. congress and the american people established these agencies. they didn't just appear out of dust. congress created these agencies. and then congress had the oversight responsibilities for these, what the office of inspector general does is bring transparency to the american taxpayer. what you're doing is vital. so with that, mr. horowitz, if i asked to see all of the papers on your desk, would you assume that's only three pages or would you assume that's all? >> i would assume it's everything. >> if i asked for all the pages on your desk that you could go back and seek counsel and come back and say, no, we really decided all doesn't mean all? >> pursuant to the ig act, no, you would get everything. >> i have a real issue when any agency steps in and says, i know congress has required all these pages to be turned over, but we've discussed it as an agency

and we're not going to turn it over. i have an issue with that. i have an issue anytime an agency steps up and says, we don't like some of the information coming out, and so we're going to choose not to give it. i don't like it when i read reports from the attorney general when he writes back to the inspector general and says, i have determined that providing the oig with access to it is helpful to me. and so i'm going to turn this over because it's helpful to me. that implies to me that he's also reviewing other documents and saying, i'm determining this is not helpful to me so i'm not turning it over. that is not the responsibility of the attorney general of the united states to only turn over documents that are helpful. with that, i have several questions. the road blocks that y'all have experienced over the last several years, mr. horowitz, you've been at this how many years? >> a little over two years. >> of what you have seen, and the folks that you have talked to -- mr. elkins, how long have you been with this with the inspector general's office? >> just a little over four years.

>> ms. buller? >> six years. >> okay. the question is, this is obviously an old law. this is not new. this is requiring the administration, every administration, any administration, to say american taxpayer dollars at use here. what have you seen of what they're experiencing now that has changed? and has it changed? is this just normal protocol from every administration to drag their feet on every investigation, or is something changing? i'm not asking this in a political way. i'm just trying to figure out, is this just typical normal protocol from every administration, every agency? >> i can certainly speak to our situation. i talked to my predecessors, and the answer is clearly no in our circumstances. we did fbi oversight after the attacks of 9/11, after the robert hanson scandal. we were given complete access to the materials we needed. we didn't face these kinds of

issues. frankly, we didn't face these issues until 2010. >> are you finding that for your requests and your information coming out from a request is coming out as fast or of equal speed that you're getting from the inspector general's office? >> i haven't compared those, so i couldn't speak to that. >> i can say here in congress we are finding that. that at times we'll make a request of a document, and a foyer request happens. and the foyer request gets it the same day we do. sometimes faster. so that has been an issue. mr. elkins, i have a question for you. you're dealing with the epa. you said in your oral testimony that you're being blocked from the epa receiving information that they have deemed intelligence activity. tell me about that. >> yes, sir. the epa under homeland security has asserted that it is the primary office in epa to handle any issues related that have intelligence connected to it.

unfortunately, they do not have investigation authority. there's only two entities within the epa that has investigative authorities. one is the oig, and the other is cid. in terms of employing these cases, which typically leaves off where you have intelligence information, where individuals inside the agency is doing something illegal, it's going to be related to an employee's misconduct. >> can you tell what intelligence activity is within the epa? what they're saying -- they're withholding this information, and you can't look at it because it's intelligence activity. can you tell what that is? >> to the extent they have the intelligence information, i don't know. because they don't share that information with us. >> i can tell you this committee finds this ironic. not long ago we had somebody sitting at that same table that pretended to be with the cia and was also with the epa, and for years, for years eluded epa

oversict because he claimed he was secretly working for the cia. i find it ironic the epa is telling the inspector general this is intelligence related, we can't pass this on for oversight. i'll be interested to hear from the epa what intelligence activities that they are doing on the american people, and what intelligence activities that they're doing nationwide, or worldwide related to the environmental protection act. and why they would say this is so secret, that we're not going to allow the american people to see the activities of the epa or allow the inspector general to participate in the oversight for that. i think that's a reasonable question to ask any agency that doesn't have investigative intelligence responsibilities, how they have somehow created their own intelligence department, and what they're doing with that. mr. chairman, thank you for allowing me the extra seconds here of questioning. and i thank you all for your work. >> i thank the gentleman. i recognize the gentleman from nevada, mr. horsford. >> thank you, mr. chairman. i appreciate very much this hearing. and we started off saying that

this is going to be nonpartisan, and unfortunately as usual it turns into a bit more partisan than it should, because the role that the ig plays is very important. your mission is important. and we should be working in a nonpartisan fashion to support that. mr. horowitz, i do want to follow up on your comment by my good friend, the gentleman from oklahoma, and to ask you to clarify a little bit based on your testimony today and your previous testimony in january. i want to ask you about some of the concerns that you raised regarding your office's access to categories of information relevant to ongoing ig reviews, including wiretaps and grand jury materials and documents related to the department of justice's use of material

witness warrants. mr. horowitz, as i understand it, in specific instances, you have had to seek access to this information from the department's leadership, correct? >> that's correct. >> when testifying about this same issue before the committee on january 15th, you stated, and i quote, in each instance, the attorney general, or the deputy attorney general provided us with the permission to receive the materials. is that correct? >> that's correct. >> you also wrote in your testimony today that the department has informed you that, quote, it is their intent to continue to grant permission to access records in future audits and reviews, is that correct? >> that's correct. >> so mr. horowitz, as a preliminary matter, has all of the information you have sought from the department been provided to you? >> we are told that it has been. >> has any information that you have requested from the department ultimately been withheld from you? >> ultimately, no. we've gotten it after many months.

>> so during the january hearing, you testified that your office's access issues were, quote, not necessarily specific to this attorney general, this deputy attorney general, it is an issue that my predecessors have had to deal with, is that correct? >> it is correct that they've had to deal with timely production of materials. >> so when you were asked by my good friend the gentleman from oklaho oklahoma, is this an issue that is unique to this department's leadership, that was not the answer you just gave? >> the issue arose in 2010 when my predecessor was still there, and continued beyond that. there were other issues that predated in terms of timeliness. but we have not had a legal objection raised by a could po nent since then. >> i appreciate that clarification. it is my understanding that the department recently requested a formal opinion from the office of legal counsel to resolve a

conflict between the interpretation of 6-a of the ig act which grants the ig prompt and full access to all necessary requested information, and several statutes that restrict the release of certain types of protected information such as a grand jury and wiretap material. it is also my understanding that the department has told you that it is committed to working with you to provide access to all materials necessary for your office to complete its review until the olc releases its opinions. is this correct? is this a correct understanding? >> as i made clear in my testimony, the leadership has made that clear. the problem is, every day this goes on, without a decision, we don't have -- we're not independent. we're not acting independently. >> but that is not an issue of the leadership of that department? >> as i testified today, the leadership has made it clear they will continue to issue orders to the components to get us the records.

but the issue is whether that's really required by congress' act. >> and so, therefore, mr. chairman, i think to the degree there is clarification within the disputes with section 6-a, and the statute, not as some would like to assert, somehow the department's leadership, and a lack of providing information that's being requested of them. i think that needs to be made clear for the record. i'm encouraged that the department's leadership has been working to provide your office with access to the information it needs to do your job, including grand jury and wiretap information that must be closely guarded. and i hope that both parties continue to work together as we move forward on this important issue. thank you very much, mr. chairman. i yield back my time. >> i thank the gentleman. and i guess i would express my pleasure at this hearing so far,

up until now, that it has been bipartisan, non-partisan, looking for answers of what is happening now, so that we can move forward and do it right. and so i would state that i think that is what this committee has developed around, and over, and has been carried on. i appreciate the bipartisan fact and non-partisan fashion so far. having said that, let me recogni recognize -- looking at the list here -- mr. duncan from tennessee. >> well, thank you, mr. chairman. i'm sorry i had to preside over the house, so i couldn't hear all of your testimony. but i introduced the original bill to create an inspector general for the tennessee valley authority. and i've always believed very strongly in the inspector general process.

it has been very, very helpful to the work of this committee. but i was really amazed by the number of inspectors general that signed this letter. i'm told it was -- i haven't tried to count it, but i was told it was 47, or something like that. that's pretty amazing. i think that certainly is not something that we've ever seen before. so apparently there's pretty serious concern by people who are in the know, so to speak. mr. horowitz, i understand, though, that there are several high-profile investigations such as in the new black panther case, and the prosecution of the late senator ted stevens, and the torture memo case, other

matters where your investigation has been hindered, or delayed or something by the office of professional responsibility? d could you explain a little bit about what that's done to your work? >> certainly, congressman. the issue there is that when congress set up the ig, our ig office in 1988, we weren't part of the original ig act, it kept in place the office of professional responsibility. and it provided that unlike with regard to all the other employees in the justice department, that we don't have jurisdiction to review alleged misconduct by department attorneys. so as a result, matters such as those cases go to the office of professional responsibility, which lacks statutory independence instead of coming to us. we actually have no authority to investigate those matters. >> well, i understand that.

but what i'm asking, there have been these high-profile situations, and i'm sure several much lower profile cases where there have been -- there has been misconduct by department of justice lawyers. do you think that your office would be capable of investigating this type of misconduct, along with the office of professional responsibility? >> we absolutely think that. and i think we've demonstrated that, frankly, by issuing reports regarding agent misconduct. such as some of the work we've done in the fbi context. we've demonstrated quite ably our abilities to do that. and i think the same independence that congress believes is important over the fbi should also exist with regard to the department attorneys. >> i'll ask the panel as a whole, do you feel that there's been an overclassification of

documents by the departments or agencies with which you've worked, or in which you've worked? or in other departments that you've read or heard about? >> i have to concur with mr. horowitz here. yes, i have heard that. in my particular agency, that has not been an issue particularly, but i have heard that issue raised, yes. >> peace corps doesn't have original classification authority, so that's really not an issue at the peace corps. >> we have found some issues related to that in one of the reports we did last year, and have reported out on that. >> all right. well, thank you very much, mr. chairman. >> i thank the gentleman. and the chair recognizes the gentleman from illinois, mr. davis. >> thank you very much, mr. chairman. and let me begin by emphasizing how much i value the work of the inspector generals in helping our government function better and become more efficient.

i want to thank all of you for being here. it is imperative that all inspectors general have a good working relationship with the agencies they're tasked with overseeing in order to fulfill their mission of identifying and eliminating waste, fraud and abuse in the federal government. mr. horowitz, i'd like to ask about the department overall level of cooperation with your office. you testified before the committee on january 15th of this year, that, and i quote, most of our audits and reviews are conducted with full and timely cooperation from the department component, end of quotation. is that a correct -- >> that's correct. most of our work, we had full cooperation. >> would it be fair to say that the access concerns you raised in your testimony are limited to

specific instances, and not representative of a larger scale agencywide problem? >> i would say there are limited reviews where we've had this problem. the problem, though, is that as mr. elkins said and ms. buller said, we get, frankly, frivolous objections that don't have to go to the deputy attorney general or the attorney general, because i have -- i'm able to work them out with agency leadership at the dea or fbi or wherever it is. but these problems, once some people see they can object, you get more and more objections, frankly. >> thank you. your office's semi-annual report for the october 2013 through march 2014 reporting period states that it has closed 184 investigations, issued 35 audit reports, and made 137

recommendations for management improvement, is that correct? >> that's correct. >> the report mentions, for example, that your office issues an audit of the department's efforts to office issued an audit of the departments and the department agreed with all seven of the ig's recommendations. is that correct? >> that's correct. >> your office also issued 12 recommendations, all of which the f.b.i. obtained. is that correct? >> that's correct. >> mr. horowitz, can you then give us an overview of how these audits and recommendations helped streamline costs and improved the department's programs and operations? >> well, we make these recommendations to do precisely that, congressman, so that we cannot only advise the agency

leadership, but the congress itself. and the recommendations we make go to the efficiencies we find, either management, waste, fraud, misuse that save the taxpayers, every year, tens of trillions of dollars. >> then it sounds to me that your office is doing a great deal of work to ensure that the agency maintains high standards of integrity and accountability. i want to commend and thank you, again, for your efforts and i thank all of you for being here this morning and clarifying and testifying and giving us the assurances that we need to have to know that you're doing good work and that the oversight of our government is in good hands. mr. chairman, i thank you and yield back the rest of my time. >> i thank the gentleman.

and the chair recognizes himself for five minutes. thank you, all of you, for your testimony. mr. elkins, in particular, welcome. it's been a real pleasure to work with you in a non-partisan way. i think all of us here would agree that we don't want republicans, democrats unaffiliated or affiliated agencies to influence your work. the american taxpayers depend on your work. so i thank you, and each one of you. mr. bowler, i want to start with you. what kind of potential harm can you see that would come with this, specifically from your work? >> well, in our case, we do have the memorandum of understanding. so we are somewhat receiving information. but the problem with that is

it's a temporary measure and we can't rely on it being there because it can be taken away at any time. and if we don't receive access to the information that we need, we can't ensure the volunteer who is have been victims of sexual assault are receiving the types of care and services that they need and are entitled to in order for them to move on with their lives. >> so is it your testimony today that victims might potentially continue to suffer if you don't get the access to documents -- if they quit providing that, could victims continue to be harmed? >> we won't be able to tell. 245's the big problem. we won't be able to tell whether or not the agency is doing what it's supposed to do or whether or not they're performing in a poorer manner than they were before. we will only be able to tell when the victims come in, like

they did in 2010, and complain about their treatment by the agency. >> so what rationale would be out there to justify -- and this question is to all of you -- what rationale is out there to preclude you from getting information that would be, indeed, beneficial to the american people? why should they withhold stuff from you. mr. elkins, we can start with you. >> yes, sir. i think that's a good question. and i scratch my head sometimes trying to figure out the answer to that. it seems to me that sometimes, some of these defenses are made out of whole cloth. they just kind of pop up. you know, based on the circumstances. so it's random and that's part of the problem. >> so there are times when they

give you information and other times they say you can't have this. >> yes, i think that's a fair -- >> is that including the employers of the agencies 1234. >> well, no -- >> well, i hope you would answer that in that manner. so what you're saying is the level of improfessionalism of your employees would be equal with the agency? >> oh, absolutely. >> do you think that the level of professionalism and privacy concerns within your agency is equal to that of the e.p.a. as a whole? >> absolutely. >> would you agree, mr. horowitz, would you have the same desire to protect the integrity of the process? >> absolutely. we have the highest track record that the f.b.i. through our review of section 702 of fiza, through various patriot acts we review. we have the most sensitive

information that exists in our possession. >> so there's not a clearance issue here. there's not a proprietary issue. really, this's no reason at all why you should not be getting one hundred percent of what you request? >> absolutely. >> i think, mr. vowler, that there's never been a case where some of that information has been disclosed by the oig in terms of causing harm to a potential victim; is that correct? >> that's correct! so if we have all of these, then what is the real genesis of this whole problem of why they do not want to share it with really the only independent source out there to protect the american people. what is the reason these agencies would do that, mr. elkin? >> it seems to me that there may be a belief that the ig act doesn't mean what it says that it means.

>> so has this been a new revelation? why did they come to this conclusion recently? >> that's a good question. >> so we've got new counsel that's interpreting it a little bit differently. so what you're saying, from a bipartisan standpoint, want we need to do is make sure that the ranking member and the chairman come together and say well, we mean what we say? >> well, in one of the things, sir, there is no enforcement mechanism in the ig act. >> i'm going to close with this. what would be the great enforcement mechanism? in that if they don't give you a hundred percent of the documents, they get their budget cut by 10%? >> sir, i will leave that up to you. [ laughter ] >> i'll certainly yield. >> just one question.

i'm trying to figure out what you are able to get under the memorandum. let's say, for example, someone was raped. right now, you would get -- what can you get? >> right now, we can get access to the restriction report that's filed in the incident report. we may have more difficulty getting other information concerning that particular incident because we don't have a personal identifying number or anything to associate with it! so you can get the details -- i'm kind of confused when i looked at what you agreed to. >> with the exception, explicit details. and we've tried to define that very narrow ly salacious, thing

that wouldn't necessarily add anything to our review. >> i see. thank you. >> the chair is going to recognize the gentleman from oklahoma for four minutes. >> thank you, mr. chairman. i may not need all of that time. i just need a follow up. >> one of the documents that you provided was some background information about grand jury investigations. specifically about an oklahoma case that i want to bring up to you. in the 1990s, the office of the inspector general requested investigation related to f.b.i. agent's testimony and the bureau of prisons and a gentleman who died named ken trinity. that was a very controversial case in oklahoma. there was a lot that happened around that case. there's still a lot of question that is still spin around the death of ken trinity in oklahoma. your reference to that case, i just want to be able to ask why you're bringing that up at this point, what you have learned from it, what was established

then, what's happening right w? >> so this is now the 1997-1998 time period. our office was involved in u.s. conduct review related to that matter. we needed grand jury information. and the justice department, civil rights division then, but the justice department supported our right of access to grand jury information and went to court, to two different federal judges in oklahoma, to confirm that the department's reading of the grand jury statute allowed them to give us those two materials. they both said you, justice department, are right in your interpretation. and under the law, the ig is entitled to get these grand jury material s. to our mind, that should have resolved this issue that's now 15 years ago. two federal judges have both ruled. the article 3 judges, we are at a loss to understand why

nonconstitutional officers would be deciding the issue any differently. >> okay. so fast forward to now today and what you're dealing with. you're not getting access to grand jury information currently; is that correct? >> the answer is it's noot a matter of law. so we have to go through this mechanism of getting the attorney general's approval to get it. >> so you now have to make a request and the attorney general can say i want you have this or i don't want you to have this? it goes back to what i was saying earlier whether this helps me or not. a federal judge has already ruled on this; is that correct or not correct? >> it's ultimately the decision of the attorney general. >> whether or not i make a request. okay. so how many cases like that are out there? do you have a guess in either delayed response or partial response or getting a response at some date in a future time

period. you testified earlier that you are getting records, you're just not getting them in a timely manner! there are probably ten or more examples that i could give of instances where we either have the legal objection raised or the timeliness issue come up in the last years. at least. i could probably make an even longer list if i went through with my staff. >> okay. thank you. mr. chairman, i thank you for allowing me to ask that oklahoma-related question. >> i thank the gentleman from oklahoma. >> as we close, i want to thank all of you for being here today. these disputes are very serious because they, without a doubt, impede you from doing your work. on the other hand, uf tyou have

anyo agencies who fight laws of conflict with rules and regulation that is you operate under. it seems like we ought to be able to resolve this. i have two concerns. and one is if we were to pass legislation and if it does not prevail, i think that makes your position weaker. the other thing that i'm concerned about is that if we were to do a universal thing, your access to information is superior to everything. i don't know what that universe is. and i'm sure you don't, either. you may know in your area, but you talking about 47 of you.

then in considering what the chairman talked about in executive order, i think the person would probably face the same kind of problem with regard to what that universe is. but there's got to be a way to deal with this. the reason i keep coming back to you is because, i mean, when you have an ig office doing this to get information and protect these victims and not be trusted with the information, there's something missing here that we ought to be able to get to the bottom line is how do we protect victims? how do we get the information that we need? so that we can accomplish that.

so we're going to put our heads together and see what we can do to try to resolve those issues. but they are serious issues. i would imagine that if the agencies came in, they probably would say, you know, we really do believe in what we're doing. we're trying to obey the law, too. so it's going to take a little bit of effort -- a lot of effort, but doi believe that we should be able to resolve this. my last question, do you all believe in executive order is the answer? >> i think anything that sends a very strong message that the ig is there to provide oversight. and in order to provide oversight, they need access to agency records. anything that is very clear that states that, without exception, i think, would help.

>> i agree that an executive order would be helpful. also, i'd just like to remind the panel here that in administrative law cases, there's a very rock solid case which is called chevron that agencies rely onto determine whether or not deference should be paid to an agency that has jurisdiction. i think, in our case, chevron would apply as well. it should be a certain amount of deference to our interpretation as to what access would be. that deference is not given to us. in our circumstance, when we tried to insert a chevron argument, it's ignored. >> i would agree with you, congressman. that a clarification is critical. an executive order, a pronto

l.c. decision that we've been waiting for a few months for now, that would say what does the law mean? that's the objection we're all getting at in some level. congress didn't mean in 6-a what we all think it means. the f.b.i. is reinterpreting statutes, the others, in my agency, the other inspectors general have said the same thing. ultimately, they're trying to interpret what congress meant. 10 it's really all your issue here that you've got the executive branch, in my case, olc, which speaks for the executive branch, trying to define what we think has always been the case, at least until 2010 when the f.b.i. general counsel raised an objection or what the f.b.i. general counsel and some others have said. we need clarity on that issue. an executive order would do it. an immediate olc order would do. and then congress can decide whether to fix 6-a at that point or not. fwh

but that's really what we need. >> i thank you all very much. >> i thank each of you for your testimony. i think today highlights, really, in a bipartisan way the need for full disclosure. to the oigs. ms. bowler, some of the testimony that you've given gives us great cause. sometimes we look at these as just administrative. and, yet, the victim that is you have discussed are real. i don't believe that we can tolerate the lack of cooperation. ultimately, they belong to the taxpayers. they're not proprietary to congress. they're not even proprietary to

you. they belong to the american taxpayers. and what we must do is have full and complete disclosure. to give the best example, say the irs comes 234 and does an all it. when they say they want all the documents, generally, they mean, all the documents. i would suggest that the agency that is are here today hear that loud and clear. and we're going to hold you accountable that each one of you have assured me that you have, that that gets abided by. a fracture there really does irreparable harm. we've got a lot of great federal workers. for many of the american

taxpayers, the oig is the only thing that they can believe in to hold these age rn sills accountable. i've got an issue that's been going on for 25 years with the epa. they have no confidence. democrats, republicans, unaffiliated, none of them have any confidence to deal with that problem. their last hope, truly their last hope is your office. and your involvement and the dependence on that full disclosure is what they're counting on. i think that can be echoed across all of the oigs. so i thank you for your testimony. i thank the ranking member for his closing comments and i look forward to you providing to this committee three recommendations on how we can help with the

enforcement. i need to have three suggestions that you might have that we can encourage these agencies to provide what the american people deserve. and with that, i adjourn this hearing.

the 2015 student cam video competition is underway. open to all middle and high school students showing how a policy, law or action by the

executive, legislative or judicial branch of the federal government has affected you or your community. there's 200 cash prizes totally $100,000. for a list on how to get started, go to studentcam.org. . okay. so welcome to the plenary session. i i i'm the theme fits nicely into

the larger theme of the convention, entitled after the digital revolution. controversy surrounding the nsa deeply implicates the uses and potential abuses of additional technology by government and non-governmental actors. violent jihadists use digital technology to build their movements. and states use it to trace these threats. as legal and national security scholar phillip bobbit has said terrorist movements often reflect or mirror the tools and aspects of the societies they attack. they use digital technology to attack us, to build their movements. and we use it to track them. and a sense, we feed the very sources that we're fighting.

so digital technology has great benefits, but it also enhances threats. many say this paradox applies to the nsa. it, too, uses digital technology to protect us. but there's also potential for abuse. james madison said we need government to protect us. but we also need to be protected from the government. if there are angels, they don't dwell on this particular earth. fortunately enough today, we have a distinguished panel to set the stage for what i hope will be a very interesting q&a. i am donald downs, university of wisconsin and i'm the moderator of this discussion.

given the situation in the world today, what's going on in iraq, syria and elsewhere, the discussion is all the more relevant. that's said to get a grasp on the nsa. what it's done in recent years, in adding to the classified nature of the nsa's work. addressing the nsa question, we have to see the forest. i hope the panel will get the right balance. if the nsa is watching this particular session, welcome.

how, how legal are nsa's programs? how effective are they? how serious are the dangers and threats that nsa programs address? and how do we define these for policy purpose. without sweeping into other forms of data collection, or is such sweeping necessary? if so, what are the safeguards. how much should the rules governing foreign strategy? just how different is foreign intelligence gathering from domestic law enforcement. how much overview defined by a system of checks&balan and balan

our system? and have such checks been sufficient. the nsa is often done its job with secrecy. especially in the past. so what is the proper balance between secrecy and openness? and who should decide where that line is drawn? what is the role and legitimacy of whistle blowers and leakers in our system. what is the legal and normative status of edward snowden whose leaks -- especially about the data process? what about other leakers and whistle blowers? if snowden returns to america, should he be punished? or is spending a few years with putin punishment enough?

how has new technology been responsible for the nature of nsa programs. how does the press deal with the publication of stories involving national security? how does the public press shape national policy and the public response? and finally, as benjamin whitey used to say, there really is no necessary conflict unless we become unbalanced on one side or the other. and before i introduce the panel, i just want to say something briefly about the stage. the nsa was officially established in 1952. it was based on previous intelligence operations. the core mission, as i said, is to gather foreign intelligence through surveillance. and this mission is to state from the normal operations of

domestic law enforcement. indeed, when the foreign intelligence surveillance act was passed in 1978 in reaction to previous abuses by the government in 1978, its main objection was to give power when necessary to foreign surveillance. at the same time preventing from leaking over. of course, what happens when there's a third category when american citizens are involved with foreign intelligence. that's sort of that third area where a lot of controversy arises. much of the recent time pivots around this general concern, as nonforeign intelligence has often been swept regarding foreign intelligence. now, since 9/11, for the

most part, there are four basic programs that have been used. two of them are content-based, surveillance telephone, internet and communications. section 702 of the fiza act amendments, 2008, addresses when the nsa may look into this content. if it's purely foreign intelligence, it lies beyond the purview. but if it's intelligence that pertains to american citizens, then there are legal standards in such investigation that need to be covered by the law. the second set involves m metadata. the internet problem has been dropped or seriously modified. but the telephone problem remains. this is largely covered by

section 215 of the patriot act. metadata has been stored by communication providers, including such things as numbers dialed, time and length of the calls, the id of cell phones and so forth information, web sites visited and the like. this data does not itself pertain to the actual content of those communications. at one time, the supreme court held that such information is not covered by the 4 tth amendmt but that was many decades ago when technology was not nearly as developed as it is now. so there's a greater concern with the new technology. in order to get into the content of this, a fiza court is required. there was a big debate. our first speaker will address this, as to whether or not prior authorization is required to

even look at the metadata itself. communications content proviolations were ultimately approved by the fiza court after the new york times leaked this published information about them in the 20000s. meanwhile, the extent was not really known until edward snowden in late 2013. after fiza amendment act, 2008, all four programs were given legal cover. but we now know that the fisa court and the nsa have been in a lot of back and forth in recent years over compliance. some say the fisa courts are doing their job. others say that this shows that they haven't been sufficient guardians of our civil liberties. in the wake of snowden's disclosures, the government, in recent months has discussed

three different reforms. i won't get into those now for reasons of time. but i assume that the panel will be talking about them. and it will be interesting to see whether they can go forth given recent events in the middle east. back in 2009, we had the christmas underwear bomber over detroit. reforms were aparentally in the making, but as soon as that act took place, reforms stopped. let me turn now to the panel, a very distinguished group. i'll present them in the order that they'll present their initial panels. first, professor laura donahue. she's written extensively on the nsa and related matters,

including two extensive pieces. she's advised extensive legal litigation. professor donahue will talk about the legal implications of mainly the bulk metadata program. but she'll also allude to section 702. the second speaker will be matthew olson. mr. olson is the director of the counter terrorism center 234 washington. before that, he served for the national security agency where he held the position of chief legal counsel. he also served the department of justice as an associate deputy attorney general and is responsible for supervising a court committee on national security and legal matters. he's had the honor of serving both the obama administration

and the bush, too, administration. he will talk about what the nsa is doing to collect intelligence to support our counter terrorism efforts. he'll also focus on the surveillance and the role of nsa progra programs, the role that play to identify and disrupt terrorist threats. third speaker will be executive director of the washington post. he was associate managing editor of the new york times. a piece i encountered on line was asked was marty the man hired to fix the washington post. i assume he is. he will talk about how the press interacts and negotiates with

the guardians of such stories. perhaps martin and matt can engage on such interactions in the past, though they recently told me they've not really done so. peter fever, our last speaker, a political scientist at duke who is widely known for national security, peace and conference studies. he's a director of the well-known triangle institute for security stud days. from june, 2005 to july, 20067, he was on leave to be advisor for institutional reform on national security counsel staff at the white house where his responsibleties included national security and other plilt kal military issues. he's written widely on such

matters as national security, the cost of war. mr. marx will focus on the public opinion dynamics and how these dynamics impinge on compilations. so our format is the following. each panelist will present five minutes, but they may glean over. and then we'll have an exchange where they apply to one another. and after that, we'll open it up to the audience. so without further adieu, why don't we start it. >> are the microphones working? okay, good. first, i'd like to thank don for the introduction. i'd like to thank my fellow panelists, in advance. i'm looking forward to the discussion.

there are two central programs that address the bulk of the issue. so in light of our limited time today, i'm going to really focus on section 215. what i'll say up front is primarily with how section 702 is relating to the use of foreign intelligence information in ordinary, criminal prosecution without any of the protections one would otherwise see in a fourth amendment conference. the first one was just published, the second one will be published in a couple of months. as far as the force goes, feel free to take a look.

i welcome all of that on the art kals, as well. let's focus on section 215. what i'd like to say is three things things, particularly bulk collection. first, it violates the whole purpose of the foreign intelligence act. second, it's illegal under the statutory language passed by congress. and, third, that it's unconstitutional. as you can see, i don't have a view on bulk -- other than that, it's great. top marks, right? and here's why. first, it violates the purpose of fisa. in the 1960s and '70s, there were programs that all of us know had to do with the collection of bulk u.s. citizens. they collected information on a total of 160,000 people, no more than eight people at a time and intercepted all national

communications and scammed about 150 cable messages per month looking for ties for foreign intelligence. now, one characteristic of these programs 1 they started limited. so operation started by only monitoring americans traveling to cuba. but they quickly expanded to include anybody involved in civil services, expected drug activity and presidential protection and anybody isn'ted of international terrorism. and this spurred congress and the charge committee in particular led the charge here to say that they did not want to create opportunities for executive branch agencies to collect bulk information on u.s. citizens. that was the purpose behind fisa. they were also concerned that developments in technology would allow agencies to exploit ambiguities in the law to intrude upon american scitizens privacy.

so to protect u.s. persons, not just from nsa surveillance, but also from fbi programs or the u.s. army's operation or the irs programs, all of these, fisa established four important protections, four u.s. persons. first, any information from electronic intercepts in particular, had to be specifically tied to an individual. right? you could not just collect all electronic intercepts. second, that individual had to be identified as a foreign power prior to that authorization. min mization procedures had to be put in place and the foreign intelligence surveillance court would oversee this process. it groadually included others, but that's the issue in the

telemetry programs. and finally, business roecords and intangible goods. now, in regard to what has happened under section 215, many of these basic principles and the approach of congress and the purpose of introducing fisa have really all been counted. there's no prior targeting. there's no prior cause that the individual was involved in any sort of criminal or foreign intelligence-related activity. the argument now is they have to get information in order to see who the targets are. third, there is not a higher threshold for u.s. persons for the collection of information. and that's countered to the

purpose of congress and fisa. and the rule of fisk is changing. so that's the first argument. the second point is that it violates the statutory language itself. the first one i want to focus on is the actual language which says that the government must have reasonable grounds to believe is sought. and this is going to have to be again, reasonable grounds to believe that the information that the tangible things sought are relevant to an authorized investigation, other than a

threat investigation. so the government argues that all met data is relevant to authorize investigations. so that makes the phrase relevant completely meaningless. it also makes the reasonable grounds provision in that statement, you must have reasonable grounds to believe that all records are relevant to an authorized investigation. it makes a prior clause out of existence as a statutory matter. all financial records are relevant. all communications. all social media. you could go on and on. all of this would be relevant to assessing a potential threat to the united states. so what is irrelevant.

now, an authorized investigation is also part of that phrase. the part that's being read by the nsa -- the statute requires that information must be obtained. an authorized investigation, prior to collecting information, where as collection does not, in this regard. in addition, the orders released by filsing allow for the future collection of the information. you are now granting authority. so that's the first set in ways

in which the stattorial language is provided. it's pretty clear that you cannot use subpoenas for fishing expeditions. i couldn't just start collecting data to see potential criminal activity. that type of use of subpoenas has been rejected by the supreme court. in addition, must be focused on individuals and their particular crimes. they oo they're not just a search for potential criminals who might be of interest. and there's an emphasis on past wrong doing. things that have happened and current wrong doing and specific

crimes that have occurred. the third statutory argument is pretty much trap and trace. >> okay. so on to the third, final set of arguments, which is the constitutionality of this. in my view, this is unconstitutional. and this is why. >> this is a local case for us up in washington, d.c. a local woman was robbed and at

the scene of the crime, she saw a 1975 monte car low car. she told the police she saw the car and somebody called her on her home phone. he basically had stolen her purse and identified himself as the person that robbed her and told her to go out on her porch. she went out on her porch and a 1975 monte carlo drove very slowly by her house. he was trying to intimidate her and harass her. she called the police and the police saw a 1975 monte carlo in her neighborhood. they took a look at the car and from the license plate, they figured out who owned the car and went to the telephone company and said can we place a trace on the line. now, at that time, local calls were billed in minutes. so it was because the police had this special device and gave it to the phone company that they could do this. and when the case -- i'm

sorry,when they placed the pen register on the phone, the next morning, michael smith called her on the telephone. they used this information to get a warrant, went into his house and found a phone book dog eared to her number. so michael lee smith had no privacy purposes in the numbers he dialed from his phone. it was in the telephone company's purview. that gave birth to the third party data in the law. we're just recording this information that the telephone company has. which includes not just dials received, but also chunk identifier information. and this information has been collected 24/7, 60-60 for years.

so what is wrong? privacy interests are significantly different. there are tens of millions, hundreds of millions of people potentially impacted. their location information and the ubiquitous information in long term nature make this qualitatively different. now, the court has decided in a number of cases that under either approach, whether one of the justice's traditional or whether one goes to the higher bar of katz, that under either approach, this is unconstitutional. on the trespass side, this is a general warant.

this is exactly what gave birth. england was seen as protecting the rights of englishmen. general warrants to look for possible criminal activity. and james otis was the one who famously argued in paxton's case that this was the worst use of power. so the virginia declaration of rights actually included a prohibition on warrant.

so that is what the fourth amendment came to embody. one can also go to katz. one cannot read the kpis existing foundings. but there is, as well, an approach to this through katz. there was a recent case, u.s. versus jones, where a gps was placed on a car outside the warrant, the ten days that had been required by a warrant, outside of washington, d.c. it was on a suspected drug deal e er's wife's car. the court decided the case on trespass. but there were five justices who said that technology is changing what these things look like.

we have this growing body of case law. it's a heightened interest from something we've previously seen.

section 502 has to do with post analysis of criminal activity. thanks. >> all right. well, i'm going to follow laura. it's not going to be easy, is it, for me as the nsa general counsel to follow laura. she's done a lot of very exsensitive and interesting work on this. i'm here, in my current role, as the national director of the counter terrorism center. and i'm going to stay in that lane for a little bit and will talk about the law at some point. i'm here primarily because my daughter is now a junior and took professor down's class. i had the privilege of speaking

to my daughter's class about national security. i'm hoping you guys are easier than that group was on my argument. they had a lot of good questions. i'm going to stay in the forest and not the trees for a moment. i look forward to having that discussion. i look forward to this nsa surveillance in my current role. so the subject of today's talk is nsa and national surveilla e surveillance. my view is nartional surveillane is indisputable to protecting the country. every day, we go around the world and find out what's happening. from a terrorism perspective. and one of the primary, if not

the primary source of information about terrorism comes from the collection of information that nsa carries out around the world. it's really from these reports that we have the opportunity to see the actual communications of the targeted terrorists who seek to carry out its acts around the world as well as here at home. so i approach this from a particularly operational per spektsive. obviously, i understand there's a lot more to it than just the operational side. we have this striking the balance. when that balance gets out of whack is when you have a problem.

so i think you need to understand what's the nature of the adversary that we're trying to learn more about to protect the country. and i'll talk more about that and talk about how nsa surveillance gets into that and then i'll touch on the disclosure of the documents and how that's affected our capableties s. so the short answer is it's persistently complicated. it's changed a lot in the last ten years. it's much different from what we faced right after 9/11 where we were really talking about a monolithic threat coming out of afghan-pakistan area. we are now talking about a diverse range of actors. a number of groups have various

affiliations with al-qaida. you can't not see this today when you turn on cnn or open a newspaper. you have groups that are officially affiliated with al-qaida, like al-qaida and the arabian peninsula, a group that was responsible for the christmas day 2009 effort to take down a plane over detroit. you have al shabaab, that's an official affiliate of al-qaida. you have groups that are lined with or everyone splintered away from al-qaida. so isil or isis, a group that's primarily in the news right now, that's a group that splintered off from al-qaida. it used to be al-qaida and iraq. from that, you have a number of individuals in places like libya, egypt who have varying degrees of adherence to the ideology. you have people here in the

united states who adhere to the ideology of al-qaida. so the way that the threat picture looks now is much more diverse, much more fragmented than it was 10 or even really 4 years ago. four years ago. beyond that diversity, this threat spans a wide geographic area going to the middle east, and across report from africa in the east egypt to mali. so the geographic diversity or geographic diffusion present as real challenge for us from a terrorism perspective and then the third feature of the threat is that it's proven to be quite adaptive. where we were concerned ten even five years ago about centrally planned plotting from al qaeda

leaders in pakistan we're now increasingly concerned about the change intact ticks where they are looking to carry out smaller scale less sophisticated attacks but attacks that don't require any central planning, don't require people to travel or communicate directly with central planners or leaders in some of these locations. so they changed their tactics this they changed their tactics in how they communicate, understanding that's a vulnerability for them. we have a threat that's diverse. so the question then, the second thing i want to mention is why is nsa so important. why is it important for us to be able to collect communications and the reason floss directly from the nature of the threat. it's very difficult to infiltrate these groups. they are inherently suspicious. they kill people who they suspect are spies. one of our primary ways then of being able to understand their

intentions, identify individuals who belong to these groups, perceive the plotting has taken place is to be able to get access to their communications. it's also the case that with the geographic spread of this threat that our ability to have sources, human sources is limited because we can't get to all these different places, another reason why nsa surveillance and collection is so critical. a third is just the inherent reliability of this type of intelligence. so it's really the gold standard. we're not relying on someone to report on what they hear, where they may have inherent bias or limitations or what they have access to, we're actually able to get the communications of the individuals we're seeking to learn more about. so we're getting their actual emails or telephone calls. all of this really goes to the point, the fundamental point i started with nsa surveillance as

a general proposition is absolutely indispensable to our ability to counter threat we're seeing and continuing to proliferate. a couple of cases in point. syria. so, obviously, the news we're seized with what's happening in syria and iraq. in syria we have the unrest has led to really a magnet for foreign fighters. we have over 12,000 foreign fighters going to syria. that number is going up all the time. more than 1,000 coming from europe and more than 100 coming from the united states. going to syria to join the opposition and many of them joining the extremist groups like al qaeda affiliate as well as isil. our concern as these individuals go to these places they will get trained, further radicalized and then return home. one of our great challenges from an intelligence perspective is identifying these individuals, understanding what their intentions are, and if they are

involved in plotting, being able to disrupt that. that's why it's a very good example of where the types of intelligence we get from nsa is critical to our ability to understand this emerging threat. another point or example i wanted to share because it goes directly to what laura talked about in terms of the particular programs, i know folks are interested in talking more about section 702 and 715. the specific example that's been more widely discussed and many of you may be familiar with is azazi. he was an individual in colorado. in 2009 nsa using section 702 was targeting an individual in pakistan who was connected to al qaeda. by targeting that individual in pakistan they intercepted an e-mail between the individual in pakistan and this individual they didn't know anything about

living in aurora, colorado in which they were sharing information about how to prepare an explosive device, a recipe for an explosive device. because of that intercept, because of that collection, nsa identified this individual in colorado. shared that information with the fbi. the fbi initiated an investigation of azazi. azazi eventually -- he was days away traveling to new york. he was arrested by fbi as he was on his way to blow up the new york subway. in addition to identifying azazi the nsa, fbi used section 215 to corroborate the identity of an accomplice of azazi by looking at the phone records for this individual. the attorney general called this one of the most serious threats we've faced since 9/11. it was a plot that was real. it wasn't aspirational. it was stopped because of nsa and because of these programs.

so the third thing i want to say is and i'll talk just for a moment about this and turn it over to marty is a word about the impact of the disclosures. the bottom line is the documents that were stolen from nsa and then disclosed have had an extremely damaging impact on our ability to collect information. we've lost the ability to intercept the communications of key terrorist operatives and leaders. look, we know these groups monitor the press. we know they are suspicious of our ability to collect their communication. it's not news to them that the nsa and the united states government, intelligence agencies around the world are trying to collect their communications. what this information did was essentially confirmed in excan youcy -- excruciating details the scale and scope and in many instances it had nothing to do with privacy or civil liberties

of americans. it had to do with technical capabilities of ufrs intelligence agencies. we have examples of terrorist who adopted greater security measures in the last year including various types of encryption. they changed internet providers. dropped or changed e-mail addresses. in some cases they ceased communicating the way they have before and dropped out of our ability to see what they are doing. extreme impact on our ability to collect these communications. so, look we're at a point now, though, where we're dealing with this. the president has made significant changes in the 215 program. no longer looks what laura described. but, we have a lot of work to do to, to address the erosion of trust that's been created and i think that's something that is part of why it's important to have discussions like this with

informed and influential audiences like you all. and why i welcome the opportunity to have this discussion. so thanks. >> what i'll try to talk about here why and how we decided to publish, how we went about our work and how we think about national security issues in our coverage. i'm not a lawyer. i'm not is going to pretend to be one here or play one here so i may be at a disadvantage but i can speak at least in broad strokes about the role that we see for ourselves in coverage of this nature. national security as you might expect is an area of intense focus for us at the "the washington post." i don't think that should be a surprise. it's one of the greatest powers of government, that's the power to make war, to spy on people, to interrogate people, to prosecute, to incarcerate and kill, all of those are the

greatest powers of all, and they are vested in our government as they are in every government around the world. we have to cover the federal government. and in covering the federal government those are not activities that we would choose to ignore. and nor are those activities that, in my view, we can simply defer to the governments, where we can defer to the governments, which is on what we should report, how we should report it, whatnot to report, whenever the government asserts that a national security rationale or whenever the basis for our coverage is classified material. the government has shown a remarkable -- maybe not so remarkable addiction to classifying documents and enormous amount of information is now classified including a lot of information that is relatively innocuous.

there can always be a rationale for keeping something classified. and as a result various sweeping government policies with profound implications for individual rights, the fourth amendment we've talked about here, the first amendment as well. those have been put -- have been put into place in secret. you know, the constitution of the united states begins with the phrase "we the people" and it presupposes that the people will be involved in self-governance, that this will be a government of, by and for the people and the premise of that is that the people actually have information about what their government is doing that they have knowledge of that. so, our purpose is to try to provide that information so that we can actually have self-governance, in fact, not just in name. at the "post" we h