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 have a highly

experienced national security staff. i think the people on this panel are aware of that. they have a lot of interaction with the people on our staff. we do rely on their expertise and their history of navigating the most sensitive subjects imaginable. we recognize that there is tension between national -- between self-governance in this country and national self-preservation and self-protection. there's no question about that. and we are not dismissive of national security concerns. we do take them very seriously. we recognize that it's a dangerous world. as we've heard already. we certainly know that. nor do we doubt that the government needs to engage in surveillance activities. it's not a question whether she

should have intelligent activities or no intelligence activities or no surveillance whatsoever. so as a result of that our reporters communicate quite regularly with the pentagon, the white house, the intelligence agencies, you know, on the nsa documents that are at issue here. we spent many hours on each story in detailed conversations with high level officials. i think there was one occasion where there were 16 officials with our one or two reporters from pretty much every agency in government at the time. and then on many occasions at the request of the government we have withheld information that might disclose very specific sours and methods, and in withholding that information we ourselves have come under criticism from a certain segment of the population that we were denying the public information that it was entitled to have. however, we did not agree and would not agree to every request

that every sort made by the government. had we done so, we would have had no stories whatsoever. because the intelligence agencies, obviously, would prefer we not publish a single word on this subject at all. so, you know, the director of national intelligence and leading congressman have said that, i think, chillingly that the journalists that revealed this information, the contents of these classified documents were accomplices of snowden, that was the phrase that was used and one congressman suggested we should have been prosecuted under the espionage act. thankfully i'm here and to be in front of all of you. what we saw in the documents that we received from snowden was something that went beyond the specific sources and methods that the press had traditionally

guarded on grounds of national security. the documents had revealed that the nsa was engaging in surveillance of, i think, breathtaking scope and breathtaking intrusiveness. to a degree that many in the public could never have imagined and certainly would never have approved. what we had here, we believe, was a national policy, not just sources and methods and a policy that dramatically shifted the balance towards state power and shifted the balance away from individual rights including privacy. there had been no public knowledge, there had been no public debate, and knowledge within the government itself was sharply limited. so now we have that debate. we're able to have panels like this and discuss what is appropriate policy and knowledge is not just limited to a select group of powerful individuals

within the government. who are shielded from oversight by the people they represent. i'll turn it over. >> so it's an honor to be on a panel like this, even though i realize my presence diminishes the average luster of the panel and perhaps the average salary as well. i'm just hoping my dean sees this on c-span and takes steps to rebalance that last piece of it. i'm going to speak of five propositions about someone, a group referenced in martin's remarks, namely "we the people." what's the broader and popular public opinion for the concept of this issue. the first proposition is that the public is not nearly as ron paulish on this issue as "the washington post" or "new york times" coverage might make you think it is. byron paulish, i mean tired of war, wanting to retrent at home

and fearful that the government is a bigger threat to their freedom than terrorists are and i commend to your attention fourth coming chicago council poll that surveyed the public on a wide range of foreign policy national security matters that's going to be released very shortly if it hasn't already, and the data there are striking. note, this is data collected before isil became a household name, before the most recent, sort of spike in coverage and concern. but only one in three thinks that restrictions on the national security agency should be increased, more people think it should remain the same and there's a small number that think there should be fewer restrictions. it's a plurality the public thinks the budget for general information gathering the nsa's budget and matthew's salary should remain the same, that it is now. and seven in ten, supermajority

say that it's more important for the federal government to investigate possible terrorist threats even if that intrudes on personal privacy. so they tilt the privacy security balance in the direction of security. they want more gitmo than close it. very little positive affect towards snowden. the general public doesn't view snowden as a hero. put another way, this is a public that the nsa could work with. this is more of an nsa kind of public i think than a ron paul public. there are, of course, very outspoken minority groups that hold to a ron paul view but in general the public is more sympathetic to what the nsa is doing.

the second proposition is that the public is not panicking about terrorism nor is it sanquine about the terrorist threat. the public is still quite worried -- this is now 13 years after 9/11, still worried about terrorism and they are actually even more worried about terrorism than they have been in a decade, that is the 2014 data is higher than the decade ago. 34% say terrorists have a greater ability today than terrorists had on 9/11 and a decade ago you would only have had 24% who say that. and about a third of the public thinks that the president has made the country less safe in this area. and all of this data is before attorney general holder said that the isil terrorist group was more frightening than anything he had seen and before secretary hagel, the secretary of defense described the threat

in apocalyptic terms. this is a public before the most recent isil revelations. third, my third proposition is because of those first two propositions, the politics do not favor poo-pooing the threat. i think the president erred when he dismissed isil as a jv threat. jv team that -- and this is in his new yorker article. you can be assured if isil is succeeding attacking the homeland, the lead will be isil the terrorist group that president obama dismissed as jv team struck the united states yesterday. the president i think understands that was a mistake certainly his communications team does. that's why they've gone to extraordinary lengths to deflect and attack criticisms about how the president's choices in syria

have contributed to the rise of isil. the president goes to remarkable lengths to attack people who say that and that effort by him will get harder and harder to do because the more entrenched criticisms are coming from members of his team or former members of his team. so secretary of state clinton, deputy secretary of state steinberg, former ambassador ford, undersecretary, they all registered very compelling and thoughtful critiques and many more democrats have spoken on a basis with martin's staff and in more bitter way about the problem. so it's impossible to dismiss this criticism as partisan. paradoxicallily the recent success in rescuing the refugees

on the mountain top that's going to increase the intensity. if isil successfully attacks the u.s. homeland and the president has not authorized previously authorized strikes against them in syria and elsewhere, then the question will be well why didn't he use tools that were successful for him in iraq to deal with the threat in isil with his own adviser said you can't contain this threat indefinitely without confronting them in syria. the political vice will tighten. the fourth proposition floss directly from that. these numbers, the poll numbers i described are likely to spike in favor of a morrow bust counterterrorism effort, and including a robust intelligence collection rather than the other way. i don't think we're heading into a period where the public will

be clamoring for more restrictions on nsa, i think the global instability trend lines point to the other direction and it's easier for me to imagine scenarios where the public concern about this will increase dramatically than it is for me to imagine scenarios where the public will become more sanquine. and that intensifies further the political pressure on the administration. particularly the pressure to be more expansive on intelligence collection. one of the reasons that the bush administration in the fall of 2001 moved as quickly as they could, accelerating and actually throwing out existing war plans and creating a new war plan in order to attack -- attack al qaeda in afghanistan on an accelerated basis, the administration was very concerned that al qaeda would go up 2.0 on the u.s., they would

get a second strike in before the u.s. had been able to avenge the first strike. and they were concerned that in such a climate, if al qaeda had gone up 2.0 on the u.s. that the pressure from the public for an unrestrained, for an overwhelming response using all elements of national power including, perhaps, even weapons of mass destruction, the nuclear option, the frupressure on the administration would have been greater. part of the reason to move so quickly was to bring the political environment back into align with a more coherent and more reasonable counterterrorism strategy. ironically, this president, president obama, has put even greater pressure on the intelligence community. ben rhodes, who's the president's chief spokesperson in the national security area, recently said -- this was about a week ago -- that at that time there was no need to attack isil

in syria, and the reason was that they didn't have clear indications and warning yet -- this was a week ago -- that isil was going to pose a direct, imminent threat to the homeland, but ben rhodes insisted that if we did get that clear indication and warning, then of course the president would authorize a strike. what that does though is put a tremendous amount of pressure on your indications and warning capacity. that was a shot across the bow of the intelligence community. that quote saying that -- because that was, in political terms saying, we don't need to act now because the intelligence community has not told us that we need to act now. so if we're wrong, if there's a strike, the intelligence community hasn't warned us adequately. it is setting the political predicate for a blame shift

which has tremendous pressure on the intelligence community to open the aperture and make sure that there is not a single possible threat that goes unnoticed. and so this leads me to my fifth and final proposition. that there is an interesting policy maker and academic gap in this area, in the study of this issue. let's stipulate just for the sake of argument -- we can argue whether it is true or not but for the sake of this panel, let's stipulate that some level of homeland risk is irreducible, that even if the team does all the work, that there's some irreducible threat that remains. i've heard many, many academics accept that premise, and then say why are we doing so much to reduce it, including accepting trade-offs on security and privacy from nsa, why are we doing so much to reduce it?

the policymakers i've interacted with see it in the mirror image. they say the threat is at this irreducible level precisely because we're going to such extraordinary lengths to reduce it. that's why we have to maintain these extraordinary lengths so that the threat remains at whatever is the irreducible level. i close by saying i think the pressure on the president will increase in this area. i call to your attention what the president said a day or two ago in a speech to veterans. he said that if isil killed americans, he would avenge their deaths. no one should doubt his willingness to do so. and i accept that at face value. i certainly don't doubt his determination. he's proven that he will use all elements of national power to avenge the deaths of americans. and americans do want the

president to avenge those deaths. but they want even more for the president to take all reasonable measures to prevent those deaths. they're not just interested in avenging, they want prevention. so go back to my political vice problem for the president. if the president does not take action against isil because he's waiting for clear indications and warning of a homeland attack, and if he doesn't get those clear indications and warning because of restrictions that have been placed on the nsa, then in that hypothetical the blow back will be severe and debates as to whether the fisa approval process is overly general i don't think will have much resonance with the voters. >> thank you panel. very interesting. any questions we have for each other, we have until 12:00.

we want ample time for q&a. let me launch our discussion by asking a question building on what peter just said. given his assessment of the political vice, can we expect to see any kind of reform of nsa, and if so, what would it look like. >> well, i'll jump in. i do think that the president made a very important speech earlier this year in which he outlined the challenges that we face in this area, much along the lines that we've all discussed. he identified, for example, his speech took us back to the american revolution, through the civil war, through world war ii talked about intelligence gathering and the inherent difficulty that we have in trying to balance national security and privacy and civil

liberties. one of the points i wanted to make today i think that's really crucial from my perspective, having worked on these issues for several years, including under the past administration, is that this discussion didn't just begin with the "post" story or the "guardian" story last year. this is an ongoing debate. it is an ongoing debate with lawyers, policymakers, members of congress, the courts, and with the public. we can talk about how much can and should be public, but this debate's been going on. the president pointed out there have been some big changes though, right? changes in technology, the fact that after 9/11 we're talking about threats inside the united states. our biggest adversaries are no longer nation states but actors. that has put pressure on our system. that led the president to announce a series of reforms in his speech earlier this year. so the quick answer then is, yes, there will be changes.

yes, congress is -- has undertaken legislation right now that there were changes that we made on the executive branch side that didn't require legislative changes, including going to the fisa court for approval for every time we look at the data that's collected under 25. notwithstanding laura's points about the ways in which 215 is out of whack with fisa, illegal under the statute unconstitutional and illegal. the reality is, you may not realize this, it actually is legal, it is constitutional and every judge that's looked at it with the exception of one judge, but every fisa court judge that's looked at it has said so. as long as i'm in this seat at the national counterterrorism center, as long as i'm part of the counterterrorism community trying to protect the country, we'll take advantage of those laws and policies and rules that allow us to do these things. so this may be where laura wants it to go but it is not where it

is now. so there will be changes. the president said we'll end bulk collection. we've worked with congress to enact legislation that will end bulk collection but still maintaining an operational capability that's similar essentially to what we have now. >> maybe yes or no -- can you live with these changes. >> so we're working through that now but some of the legislation that the house passed and that the senate's considering now i think is within the range that will maintain that operational capability. so yes. >> so i'd like to highlight a political and constitutional reason why we absolutely have to have those reforms. marty referred to "we the people," and the need to know the importance of this. it is a problem when the law says you have to have reasonable grounds to believe that information is relevant to an authorized investigation. turns out all telephone calls are relevant. it is a problem when the law says you may not knowingly collect entirely domestic conversations and the nsa says we know we collect tens of thousands of entirely domestic

conversations but in any one instance we might not know at that time so we're still going to collect it. right? it is a problem when the law says you have to be able to obtain those by a subpoena deuce duces tecum. it is a problem for democratic governance when the law says one thing and inside a super secret classified world that only a handful of people have access to something very different is being done in the people's name. the second point -- so on this line, disclosures damage intelligence collection. i entirely agree on this point. but so does the use of the law in a manner that looks so different from what it actually says on its face. that also creates great damage and the damage done there is to democratic governance. on the constitutional point, something we haven't really touched on is 702. what's being done under 702 is it's not just information to or from -- so section 702 deals with non-u.s. persons located

outside the united states, the collection of information on them. 703 deals with u.s. persons outside the united states and the domestic collection of their information. and 704 is u.s. persons outside the u.s. and the international collection of their information and different standards apply to each category. so 702 you're collecting information on non-u.s. persons. one of congress' concerns was that this would be used for reverse targeting. so they would say, for instance, that the concern is that the intelligence agencies would say, well, we're targeting foreigners and we're going to collect all international communications but we're actually not targeting americans in the united states. so we're just going to target overseas and use it to reverse-target individuals in the country. so that's why they introduced these other provisions, 703 and 704, minimization procedures, other mechanisms to try to prevent this from happening. what is actually happening is this is being interpreted, not just information or communications to or from targets overseas, non-u.s. persons, but information about selectors related to those

targets overseas, which is a broader understanding. you can collect more information. so if i communicate with somebody and there is reference in the content of my communications to a selector, that information can be collected and mined for further information, even though i never communicate with a target itself. this is called to, from or about interpretation. tfa. this tfa has allowed the government to collect a lot more information than it would otherwise be allowed to collect and it is now allowed to query that database using u.s. person information. so names, affiliations, titles, could be council on foreign relations. when you query the data to see if anything comes up. you can actually query this database which the fbi has co-mingled with traditional fisa and there is no record kept of this. now under the fourth amendment, the right of the people, which is understood as the political entity of u.s. citizens, not

non-u.s. citizens. so the right of the people to be cure, their persons, papers and effects, against unreasonable search and seizure shall not be violated. right? we have this right, yet u.s. person identifiers are being used to query this database. now the foreign intelligence surveillance court offered reasons saying why there was not a warrant required for the collection of the information in the first place. they were good reasons. that when the purpose of the surveillance is not garden variety law enforcement. when the government's interest is particularly intense. and where there is a high degree of probability that if you were to require a warrant, it would hinder the government's ability to collect time-sensitive information and would hurt u.s. national security. you can collect the information. none of those conditions hold when the fbi then goes back to the database to see if there's any evidence of criminal activity linked to non-national security related criminal cases. similarly, in bin laden, the southern district of new york said it is hard to get warrants for foreign intelligence collection overseas. it is hard to predict the international impact of seeking a warrant. there is a problem of foreign intelligence officials being seen as complicit. there is a danger of alerting

foreign enemies overseas. when we already have the information in our hand it is hard to argue why you shouldn't be required to get a warrant to search the data for evidence of criminal behavior, especially when it's utterly unrelated to national security interests. the privacy and civil liberties board recently came out with a report where they said the fbi frequently does this and they don't keep a record of it. they don't go to a court first. there's no probable cause required. and this amounts to an end run around the fourth amendment. we have to have reform of this system to bring it within our constitutional purview. >> i want to just change course a bit and maybe address some of the things that peter said. because i felt there was a bit of a characterization of what we think at "the washington post" and how we are and all of that sort of stuff. let me offer, i hope, clarifying remarks. first, we never said snowden is a hero. by the way.

what we suggested was that in these documents that he provided us and "the guardian" that there was information that the public had a right to know and that had important public policy implications. and that probably should lead to a debate such as the one that we are involved in here today. we never suggested that the public is not concerned about terrorists. we are concerned about terrorism. we cover it every single day. and by the way, we feel it very acutely. the individual who was recently beheaded by the islamic state was a journalist and there are other journalists who are being held by terrorists throughout world. so we're not pollyannaish about that subject. we didn't say that a majority of americans favor greater restrictions on the nsa. in fact, we conducted our own polls which showed pretty much what was reflected in the polls that peter cited.

nonetheless, to say that when three say restrictions should be increased, that's a substantial portion of the population. i don't think just bus something doesn't constitute a majority doesn't mean their views should be entirely dismissed. and we have said that, and do feel, that this level of surveillance does raise important constitutional issues. as laura has been talking about. and is potentially subject to abuse. there's no question that we are in a period of terrorism threat and there's no question that in a period like that, individuals are willing to give up their rights in favor of security. but that's a decision that the american public can make through debates such as this one. the american public can arrive at a policy that they think is

appropriate. if they choose in some manner to give up their rights, they can do so, although we do have a constitution and those things have to be contested and discussed in courts and in forums, political forums and forums such as this one. i do agree with laura that while perhaps disclosure of these documents has had an impact and perhaps a very serious impact on the government's ability to conduct surveillance and intelligence that feels it's important in the fight against terrorism, nondisclosure of all of this that the fact that all of this was largely secret from the american public does in fact do damage to our civil liberties and our ability to govern ourselves. >> peter, any response? >> well, i think you just

misunderstood -- i was not attributing those to the views of the editorial board of the "washington post," distinguished as that is. but you're right that there's been a marked change in the tone of coverage of these issues, even since the tragic beheading. the reporters that i talk to, their approach on this issue is different this week than it was even two, three months ago. and certainly at the height of the snowden revelations when the outrage was mostly directed at the nsa, and i think that there's been sort of a return to the more balanced perspective that you just articulated, i think there has been since then. the public has voted on these issues, voted to re-elect president bush. it voted to elect the people who passed the patriot act.

it voted to re-elect president obama, and both president obama and president bush defended these kinds of actions so now there's obviously lot of reasons why the public votes for a president. but the public -- the gist of my argument is that the public outrage at the nsa probably hit a high-water mark is what i would say, has hit the high-water mark at the height of the snowden coverage, and that world events are likely to push the public away from that, further and further away from that, more likely to do in that direction, than to push them more and more in the direction of, say, warren's camp. now that doesn't speak to the policy wisdom of whether reforms can be made. they have been made and they'll

probably be more tweaking on the margins. and certainly if there is any new action, it will be much more tailored and restrictive than the original 2001. so there is not to say the public will be -- will force politicians to be unrestrained, but it is to say i think the public is moving more in the direction of taking more risks to confront terrorism than it is accepting more risks from not confronting terrorism. >> this is a political science convention, and one of the teachings of law and politics is the relationship between law and politics. judges will often decide cases somewhat differently based upon the circumstances, you know the famous line, supreme court follows the headlines. both of these implicit but not untrue either. and perhaps press to some extent, at least in terms of what it publishes. so there is a relationship between politics and the law.

the panel, laura would be the most uncomfortable it seems with that proposition. is that fair to say? >> that the courts follow poll -- politics? >> yeah. or that politics influences what courts do. it's always been a separate domain for law. >> that's very difficult. obviously when you teach constitutional law, which i'm about to start on wednesday, you're aware of the political context in which decisions are made and of the general orientation of the justices. but also the effort to reconcile propositions before it with constitutional provisions. >> absolutely. any comments you want to make before we throw it out to the audience? >> i just want to throw out, i think both an observation -- i may have a question for marty that i wanted to be able to ask. but the observation is that, look. this is really important discussion and laura's points, where the law is heading, really interesting and important part of this debate. but i think it would be wrong,

and it is really a myth that nsa is lawlessly making these arguments and going forward on its own implementing these programs. the fact is on 215, for example, the fisa court, independent article 3 judges, 37 times i believe, have upheld 215, including since the revelation of the snowden documents and the debate in the public. the federal judges who have looked out it, three out of four have upheld 215. on the 702 side, congress passed 702 fully understanding after a debate how it would be implemented. and the judges that have looked at it, the one judge that's looked at it has upheld it as constitutional, as within the statute. it may be the case that some day law review article that laura's writing will make its way into a court or into congress and change the law. but that day is not today. so we, from my perspective, we have an obligation to execute

the law in a way that protects the country and takes full advantage of the laws and tools that are on the books. i think it is a misimpression to say that these are just arguments nsa is making or just ways nsa is implementing these laws, because there are lots of people at the justice department within the executive branch, within congress, the fisa branch, looking at these programs, validating and reauthorizing them and determining that he are within the statute and within the constitution. i think it is a really important issue and i'd like to ask marty. i think the hardest part of this -- i think you made a very reasonable opening comment -- i agree with you the way "the washington post" approaches these issues. i've had interactions with "post" reporters about information they've heard. the challenge is -- at least one challenge is the initial story that the "washington post" broke -- i think it was the initial story -- said that nsa had

directly tapped in to the servers, central servers of internet companies. non-internet companies. this was based on the slides that snowden had released. this turned out not to be true. this was the lead story. so a lot of people might rightly think then, and even today, that that was the case. in fact, what that program was talking about was section 702 of fisa which had been debated, authorized and validated by the courts. it is just very -- i understand there's pressure on the press to publish when you have something like that based on what you know and there may be timeliness pressures as well. but the problem is unringing that bell, because that turned out not to be true. you all would be forgiven if you think that today it is true that nsa has tapped directly into the servers of american internet companies. not true. just not true. but it was the lead paragraph of that initial story. and it's very hard to change that impression once it's out there. i think there's real pressure and i know there is a back and

forth and maybe we've gotten better at it in sort of working with the press. but the other problem is that not every press outlet is the "washington post" and "the new york times" and is engaged in that type of discussion with the government in an effort to be responsible. so that's my sort of question. >> let me address that. first, we had discussions with director of national intelligence and with the nsa before publishing that story. the second point is that was an actual nsa document that said they could tap directly into it. so it was an actual accurate account of what the nsa was telling its own people and its own documents. so in addition, the story did not stop there. it actually said that the nsa and the government denied that it was doing that and they quoted extensively from technology companies, google, and the like, saying that they were not aware of this, this did not happen.

so it did not stop at just saying the government can just willy-nilly tap into these networks. it actually quoted from the government saying this was not the case. it quoted from the technology companies saying it was not the case. but it also quoted from the actual nsa document in which it said it was the case and this was what they were doing. as far as the every media outlet not being "the washington post," i appreciate whatever deference is there to the "washington post." the reality is that snowden could have done what was done in the case of wikileaks. he could have actually turned this over to wikileaks. all of this information, without any intermediary being involved, the intermediary being us and "the guardian" and some other publications over time, he could have just posted it all, put it all out there for anyone to look at. any terrorist organization, any

other country to take a look at and pore through and look at it to their heart's desire. for reasons that he has articulated, he gave it to us to exercise our judgment and in exercising our judgment we spent, as i think you know, an enormous amount of time with the government going over this information, and actually withholding information that the government felt was far too sensitive. we spent months on some of these stories. we have spent enormous amount of time, an enormous amount of money. we've also taken enormous precautions with the security of the documents that we have. so i don't think that's an act of irresponsibility in any way and i think that certainly the government would argue that nothing should be out there, that the government should essentially know everything, the public should know almost nothing.

that's not -- >> that's not my position. >> well, that is the position i think of some. that's not a position that i think is consistent with the very principle of self-governance. >> i think we need to move toward the q&a. laura would like to make one quick final point. then we'll do the q&a. please line up behind the microphone. if you just ask your question back there, they can't pick it up. >> just a comment responding on the foreign intelligence surveillance court, this reliance on fisa concerns me and the reason why, if we look just across the board, in the past ten years of 20 judges on the court, only three were democratic appointees to the court itself. of the judges on the foreign intelligence court of review, all of the judges on the courts of review that have issued these important decisions bringing down, for instance, the wall between criminal law and national security were republican appointees. two of the judges on the three-panel that brought down this wall had actually said fisa itself was unconstitutional in the first place.

judges silverman and guy. applications that come before the court in the past decade, there were 18,473 applications, only eight denied in whole and only three in part. out of 18,000 cases that come before the the court. there's no advocate posed to the government at the court. these are in camera, ex parte proceedings so there is nobody to argue against the government for these orders that are put into place. there's no constitutional advocate or advocate that may challenge this at the time the orders are being put forward. you see the impact of this. judges that have released opinions, one of the opinions when it treats smith v. maryland spends a page and a half as summarily dismissive of any question of third party data with no treatment of advanced technologies, u.s. v. jones, these other cases that have been handed down. we now have these other cases you could look to but none of this is being cited, there is no contrary opinion being expressed to the court at the time.

i would add that they were not designed to be a court to create precedent and certainly not a fourth amendment warrant exception which is what's happened with regard to 702 so the foreign intelligence surveillance court of review now finds that there is a warrant exception to foreign intelligence collection which has never been recognized at a domestic level and since 1978 fisa has controlled those collections. when you have a secret court which is heavily skewed towards one direction at least in terms of the appointments which tends to agree to all of the order requests that are put before it and these are secret, to then look to that as precedent for a court that wasn't designed to have precedent with no contrary counsel to rely on this as a state of the constitutional provisions i find concerning. >> you would support an advocate to the fisa court. >> absolutely. >> the whole panel could be devoted to that one question alone. to the q&a. >> i am steve schiffron from the cornell law school.

i have a question about -- i want to push back a little on the third party doctrine argument. i think the statutory arguments you made were absolutely compelling. on third party doctrine, you argue that it's qualitatively different, and the argument is that it is a greater invasion of privacy. and it strikes me -- i'm opposed to third party doctrine from the beginning. third party doctrine knew there was a violation of privacy but said it's irrelevant. you can take people's trash, you can get their bank records, can get their e-mail, you can get the bank records, including credit cards and so forth, you can get their telephone records. we know that invades privacy. but it's not within the scope, it's not a search. there's no reasonable expectation of privacy. so if it's qualitatively different under third party

doctrine, it doesn't make a difference. the second point is, it's not clear to me that it is qualitatively different. if you give me a choice between having the government get my bank records, my phone records, searching my trash, and so forth, versus their knowing who i called, there's a much deeper invasion of privacy. it's qualitatively different in the sense more people are involved, but in terms of the particular invasions of privacy, the third party doctrine already was doing greater invasions of privacy than the metadata of the nsa. the final point i want to raise with respect to this is a question. the requirements for a subpoena are not constitutional.

and i'm wondering if verizon says, you can't get this without a subpoena, what is the relationship between the requirement for a subpoena and probable cause? i ask that because i don't know. >> feel free to jump in. >> let's try to be brief because there is a lot of -- >> right. okay. so probable cause is not required for a subpoena. it's not. i actually have a discussion in the paper, the 215 paper of the subpoena cases that are relevant to this, the ones that the longest periods that the courts have agreed is two years focused on a particular individual doing money orders in chicago. that's the longest period of time and probable cause was not required in that particular instance. on this broader point, whether there is a distinction, qualitative difference, we have information available to us that was not available then. so social network analysis. when you put one tap on michael lee smith's phone to see if he

calls somebody who he's suspected of actually harassing, sexually harassing and robbing and so on, that is different from saying let's look at the social network and who's related to whom in this network, who the important notes are be what centrality is in this network, which ones levy the most power with regard to others in that network. that's the kind of information one can get. you can also get trunk identifier information. before when we had land lines you couldn't tell where michael lee smith went during the day. now we have cell phones. tracking technologies that allow us to attach to each cell phone tower as we move around can now pinpoint where we go. so it is different kinds of information that one can get through these same third party records. so i would say that even the telephony records are different from before in terms of the privacy interests. and beyond this, the type of information that we now digitally house with third parties is qualitatively different. on the icloud, the amount of information we put up about our private lives, our personal

correspondence, our private dealings with others, the home -- the concept of inside the home, the filing cabinet is sacrosanct and you need a warrant to go into that filing cabinet. just because we keep the contents of that filing cabinet on our pocket, this is what this recent case, the riley case, was about, whether or not you have this privacy interest in the cell phone when the police arrest you or whether you need a warrant. the court said you need a warrant. this is a new world we live in. similarly in the intelligence community, the idea that just because we give this information to apple or to google or to whoever it is and store it on the cloud that there is not a search for the government to go into it and get it, and therefore they don't need a warrant, i think that doesn't understand the privacy interests that are now implicated by how technology has changed the context in which we live our daily lives. >> it is just really important to emphasize one point after laura, which is that when the government seeks for intelligence or not for intelligence purposes, but for under fisa to obtain the contents of communications of

u.s. persons, they have to get a warrant. so nothing that we're talking about undermines that basic proposition. the government's going to get the contents of that information, they must get a warrant. >> leslie francis from the university of utah. this is a question about the contemporary structure of data and analytic techniques. with syndromic surveillance in the area of health, you don't know what you are looking for until you see a pattern. you don't know whether there's something of significance or who might be therelevant entity. now i'm actually very interested in privacy, and the gravamen of this question is to ask you, are there any ways, given that feature of analytics, to try to

craft reform so that when you can't identify the target in advance, so that we can figure out ways to think about relevance and the use of of subpoena power and so on, given that fact about the power of data and analysis. thank you. >> so my thought in response to that, this presents a national security as the haystack argument. this is senator white house is big on the haystack. can't you just build the haystack to find the needle in national security? don't we need all this information so that we can find the needle that we are looking for in the haystack? that is a general warrant. a general warrant is something that allows you to just collect a lot of information to try to find some sort of evidence of wrongdoing. as a constitutional matter i would say that that is barred as a criminal matter under u.s. law and the fourth amendment. there is no automation exception moreover. so if the government were to put cameras, video cameras, in all of our bathrooms and to record us, and they would say but we don't access it, we're only going to access it when we actually suspect there is

activity and we'll just look at general patterns of behavior outside of that, that would be a privacy violation. so the fact that you build this haystack using computers and assume there is no intervention that is also not established as some exception to the fourth amendment. assuming there's no human intervention. so while i understand your issue with privacy, when it comes to criminal matters, when you can either imprison people or kill them, that's where constitutional protections come into play. >> i would add that this gets us into an aspect that we haven't talked about yet, but i think will prove increasingly politically relevant. while it's a fact that the nsa is noting at tsing at the is targeting any of the

individuals in this room. but we are targeted by facebook, they have assembled the haystack and they're looking for things. and if you have any doubts about that, check out the ads that pop-up when you watch pandora or whatever. or listen to pandora. the internet companies do this, and i recognize there's an important constitutional difference between the government doing this and private entities doing this. but from a political point of view, i think the public will get increasingly uncomfortable with that level of targeted surveillance and you may see pressure for reform coming in through that door, and then maybe eventually migrating over into the national security area. >> all right, my name is jason ciber, i'm a ohio state university, it's been a great panel, thank you all very much. i'm an international relations

guy. so that underlies the thrust of my question. so it seems like the nctc and the terrorist information data environment tide is the primary repository for c.t. information, and we know that the nsa is one of the primary collectors of that information and i assume feeds nctc that information. and we also know that the u.s. has information sharing agreements with other countries and in fact there's a foreign partner extract of the terrorist watch list. so it seems to me like there's an interesting international dimension here. can you comment a bit on, i know you're going to be little bitted in what you can say, on how foreign partners are actually benefiting from nsa surveillance activity and is the nctc tied database becoming a global counter terrorism information

clearinghouse? >> that's a pretty well informed question, you know our business quite well, nctc, where we have the responsibility under the statute that created us to maintain the government's consolidated database on known terrorists, called tide. we share that classified data base with the terrorist screening center who then is responsible for using it for various screening purposes, airports and the like. and some of that information is shared under a sharing agreement with other countries. i think the important point is that when it comes to u.s. personal information, that for example nsa collects, that they have a series of rules and laws and policies that limit what can be shared about u.s. persons and minimization procedures in what they collect. so at every step of the process, from the initial collection of that information to its use in

classified databases to its use for screening purposes and finally potentially sharing it with other countries, there are a number of steps all designed to protect the privacy and civil liberties of u.s. persons that are taken along the way. so i think that's about the best way to answer it. it's probably a longer answer to get to the basis of your question, but again, there's a number of safeguards built into that system to protect privacy and civil liberties of u.s. persons. >> thank you, my name's grant hayward, i'm from george mason university and i was wondering what reforms we could do to optimize both the need for the people to provide oversight to the nsa and also the nsa as a means to protect ways and means. >> one that i didn't mention before but that we touched on is possible changes to the way the

fisa court operates. one of the suggestions there, formerly the chief judges of the fisa court wrote a letter recently that touched on this issue. advocating a friend of the court role in certain locations at the discretion of the court. that seems to be a reasonable way to improve public confidence in the work of the court. but the work of the court is generally classified much of it. it's not a secret court, we know the court exists, we know who's on it. but it does operate much of the time in a classified environment because the information being presented itself is classified. but one way to buildadditional al trust in the court would be to have an -- >> there are many other than possibilities for reform.

one of the problems on the court is that they don't have the technological expertise and they don't have the resources to monitor the things that they're asking the nsa and others to do. for instance for almost three years, the nsa was clearing data without any suspicion, even though the court required it. when the administration came in in 2009, they realized what was happening, within a week reported it to the court. that's actually one thing i do want to say, although there's no contrary council, there's no advocate on the other site, doj takes their job really seriously in terms of trying to present contrary arguments so the structure is not a den me grags on the way people have tried to carry out their duties and responsibilities. there's a great example of that in 2009, the doj found out that the nsa -- immediately told the court and then there's a whole backlog of back and forth trying to sort that out.

and the reason they didn't understand is because they weren't relying on the nsa to police itself. i don't think courts can or should do that. i don't think that their role to kick that to somebody else to say that are you doing this appropriately. they should be in an oversight capacity. they should have the technological expertise, there should be someone with the technological expertise to oversee what's actually being done at the nsa, the multicommunications transactions and finding out that they were wholly domestic communications in there. and there's one more point that ado wanting to make, and that's congress. i've been surprised by somewhat disingenuous response from congressional members which is that of an ostrich, okay? they say, oh, we didn't know this was going on. the reason that's remarkable to me is that the executive branch has made it clear.

congress did not realize what they were offering with the faa. you could make that argument based on congressional members statements, many members of congress actually got it wrong when they portrayed what they were doing. they said this does not allow program mattic collection. those who did recognize programatic collection. and those who support it say we can't actually do it for programatic. by 2012, there were enough times that the executive branch had gone to them and said, look, we're doing this, look, we're doing this. and the fact that congressional members say oh, well it's really hard to go to a skiff, or i don't have enough staff to do it. that's abdicating response. if you want to go to legislation, you better know how that legend shin is being used. i've been surprised by how certain congressional members have actually exercised that responsibilities which is so central in a liberal democratic state. >> i have to take issue with the

idea that this was a abdication of responsibility on the part of congress. in 2008, there was a full airing of exactly what was going to be implemented following, basing on that legislation and congress understood it, passed the legislation, ungd it in 2012, it wasn't a matter whether they couldn't go to a skiff or couldn't read it, they actually thought it was the right thoiin to do, and they voted for it. i don't see that as an abdication of responsibility by congress. >> thank you very much for coming, and i know i am going to look at future events along these lines with a much more informed ear.

tonight on cspan 3, a preview of the supreme court's upcoming term. then secretary of state john kerry testifying before the house foreign affairs committee about the administration's plan for combatting isis. that's followed by a house intelligence hearing on isis. the former commander to the u.s. central command and the former u.s. ambassador to iraq and syria. this supreme court's new term begins in october. some of the upcoming cases include racial gerrymandering of congressional districts, whistle blower protections and the

religious freedoms of prisoners. former acting solicitor general joined a panel of law professors from the muslim center. welcome to the aba division for public education's on the docket, supreme court program posted in partnership with the woodrow wilson international center for scholars. i'm gary slayman, the chairman of the aba preview advise si board. preview is the -- for decades has been the only resource to provide detailed analysis of each case before the supreme court prior to all arguments. each preview issue highlights the main issue for the court in a way that nonlawyers and lawyers alike can understand. the preview board is delighted

to welcome you to on the docket, to the annual supreme court panel. we're excited to be hosting this program once again in partnership with the woodrow wilson center. today we have assembled a great panel to help us understand the 2014 term and give us an inkling of how the upcoming term will play out. our moderator will introduce each of our panels, and i would like to say something our moderator myself. john beluski was a great friend of this broadcast to many years, he has extensive experience as a moderator, interviewer, anchor, producer and reporter. he is currently the director of digital programming for the woodrow wilson center for scholars. john, thanks for your support of us here at the woodrow wilson

center. >> thanks to everyone for joining us. let me welcome you to the woodrow wilson center for scholars. this is the nation's official and living memorial to it's 28th president woodrow wilson who had something very unique about him that no other president can claim, no, not that he was a lawyer, a lot of presidents are lawyers. anyone know what it is? yes, he was a phd. yes, ma'am, he was the only -- imagine that, the only u.s. president to be a phd. so welcome to the wailson cente for the annual on the docket program. you'll see in a moment, they always do an exceptional job of bringing an a-list guest list to the event. you'll know a lot more about the upcoming supreme court term when you leave here, i can guarantee

that. you all picked up one of these when you came in. previews, it's a terrific resource. it has detailed bios of our panel, but i'm going to give you the short version, particularly for those who are joining us via the webcast or cspan 2 or who are unable to pick up a copy of this book. let me introduce you from right to left. neil pacow, who has articled 21 cases before the supreme court. 21 and counting, because more this year on the way. previously he served as acting solicitor general of the united states and also served as a law professor for 15 years at georgetown university law center. and that was all before the age of 21. also with us, leslie kendrick, she's a junior at the-university of law. she'll be talking about some supreme court cases tonight.

she clerked for u.s. supreme court justice david suitor. and also jenae wilson, she's director of counsel for the naacp preview defense and council fund. she was the associate director of the ronald h. brown civil economic development at st. john's university of law. steven is a fellow of law and government at the american university washington college of law. he is co-author of a biography of justice brennan, a columnist and previously served as continue for "the wall street journal." please welcome our panel for today's discussion. let me tell you a bit the format, we have asked each of our panelists to provide briefings, something they're very good at on a variety of upcoming cases, in some cases by category, in others a little more free form. so when each panelist does that presentation, then we'll engage

him or her in some discussion of the cases, then eventually we'll turn it to u you and we'll ask for your questions and comments. but first, let me begin with a general question about the state of the court. is the court currently either more political than its ever been or less political than its ever been or somewhere around the average? let's begin in the order of introduction. neil? >> i have some pretty strong views on this and wrote about it in an op-ed for the "new york times" in june. if you look at the cases before the supreme court, it's very striking, it's never happened, in most of our lifetimes it hasn't happened that the court agreed unanimously in roughly 2/3 of the cases it heard. indpeed there were object 25 decisions that it decided last year that were not anonymous. you would have to go back to 1940 to find another supreme court term like that. so when you read the newspapers and the supreme court bitterly divided and partisan, there's certainly some of that, but i do

think one thing we're seeing with the roberts court, is a real striking emphasis on unanimity. and i think it's fitting that we're talking got it here at the wilson center, which is of course devoted to kind of nonpartisan true engagement of ideas, i think the court is looking over and seeing something a little bit dysfunctional in folks that can't get anything done, and can't agree on anything, they're fighting about the small things. and i think the roberts court is saying, look, we're certainly going to have our disagreements in the hot button cases, but can we find common ground? >> so in a way the court is looking to congress for inspiration of a sort? leslie? >> well, you know, i think these comparisons are really hard to go. and to neil's point about the amount of unanimity. i don't think it takes that many

hot button case where is people see a really divided court for that to be the impression that people take away, i remember when i was clerking, one of the parties involved was john r. sands and gravel, and i thought a surprising amount of the supreme court court's docket is sand and gravel. there's not many cases that are interesting to people, not many cases that really need an answer and they provide that, and they do that extremely well. but it doesn't take many cases that contain fireworks for people to -- very easy to say this is more political than the court's been in the past, when, you know, we don't have the sense of just how much fire works has happened in the past, because those are subtle questions for us now. it's hard to make the comparison. >> jenae? >> i think it's very difficult to con tech chulize it. and i apologize inned a slangs

for my voice. i think we have to take into consideration the number of cases the supreme court has taken, tipping significantly every time, every time the court opens for a new time, you see a shrinking docket. so therefore the number of unanimous decisions that chief roberts has been able to collect from the justices is impressive, but there are a much smaller number of cases. >> do les cases equal more agreement historically speaking? >> i have to agree, some of them are the mundane, run of the mill sort of circumstances that need some sort of resolution, but are not creating law that is jaw dropping and others are the big jaw dropping cases and i think the cell phone case is a good one to point to where you see unanimity, and i do wonder, what are we losing with that unanimity, to say whether it's more or less political, you have to think about what's being cut out of the edges to create a

more consensus opinion and that in and of itself could be political. >> like a family having a rule never to discuss religion and politics at the dinner table, so we can all get along. steve? >> i would make two points, i think there is a lot of unanimity, but i think some of the yuunanimity is elew si. i think the court did a good job of their rowing an issue to something all nine of them can agree on. but it's not the last cell phone case we're going to see, and the next time it won't be unanimous, because they masked some of the disagreements and i think they did that in some other cases too. to their credit for trying to find common ground, but don't make a mistake in thinking that it's necessarily, that all issues are being resolved in that way. the other thing i would say is, and i agree with neil that i think the court is very cognizant of congress being dysfunctional. but i think one of the offshoots

of congress being dysfunctional is when the court strikes down federal statutes, we presume that congress can correct the mistakes in those statutes if they want to. and a disfunctional congress can't do that. >> you're not painting a picture of a highly partisan court, but if you hear some critics of the court, particularly around citizens united or mccutchen, you would get a very different picture. >> there are certain hot button cases, gun rights is an example. and perhaps some of the cases that may come to the court this term, same-sex marriage and abortion, you know, maybe other ones in which you are going to have that amount of disagreement. but having said that, striking agreement on things like cell phone privacy, which is a sweeping holding, this is not narrow, this is a holding that affects you and me as broad as i think they could have possibly

done, saying that what the government is doing is against the general warrants of the founding, it is one of the most significant rulings of the supreme court in its lifetime. and there are other things that have been fully unanimous, things like patenting human genome. certainly there are political decisions that, you know, or things that have political consequences that the court's engaged in, but i do think this court has done something really interesting and trying to find common ground. >> any other thoughts on this before we move on to another topic? what about, let's look back at the last term once before we turn our attention forward to the coming term. is there anything that you would list as the most surprising thing about the court's performance during the last term? >> there's a predictability on these hot button issues that often have broken 5-4.

neil has revealed a specific strategy on a record setting amount of cases in 70 years, at least in the last 70 years, so is there anything that surprises you or are we talking about a highly predictable court? >> i don't want to speak to neil, i think the cell phone decision was probably a surprise, especially the unanimity of it. and the recess appointments you unanimous unanimity, we know that justice roberts says he wants to find common ground on which all nine can agree. but that doesn't mean that they're all the going to be able to find it. so sometimes when they do, it does kind of catch you off guard. >> jenae, what surprises you, if anything 123. >> i think the unanimity on the decisions was surprising and chief justice roberts seems to be getting better and better at creating that coalition, or either the members of the court

are getting to know each other, and the newest members seem to be, as kagan and sotomayer seem to be really jibing with the group and there does seem to be a greater cohesion, but i don't know if there's any surprises, maybe this is part of my cynicism about there being some politics on the court. some of these cases are rather predictable. i think there are certain areas where u you do find more predictability and so i wasn't terribly surprised. i do think those are two o outliars of the unanimous nice decisions. >> do your co-workers love or -- >> i tend to not have any expectations about the supreme court. they're going to do what they're going to do. and often you can predict where the battle lines are going to be drawn, but how exactly they're going to come down, trying to gauge that can be kind of a

fool's errand. so there were some cases that i think were big cases, hobby lobby is a big, big case, it could have gone one way or the other based on what a couple justices felt about privately held corporations. and is the result surprising? no, but it's momentous, but i think that's probably more important. >> to me the pose surprising things about the court is not actually something that happened at the court, but the lawyers who are arguing before the court. it's not surprising that the last 10 do 15 years we have seen a kind of emergence of a court bar, 75% of the arguments were done by someone who had already done fife or more arguments. here's a sad fact, last year 15% of the people who argued at the supreme court were women. 15% in the year 2014. that to me is a strikingly dismal figure. i would have thought by this point in time we would see different numbers and it's something that i think we all

need to think about and certainly those of us in the appellate portlaworld need to t about it in our hiring and our mentoring. >> this would be high priced briefings, these are billable hours, jenae, we're going to begin with you, and we have about 10 minutes for this segment. but jenae is going to talk to us about voting right s cases. >> i'm glad you said voting rights cases plural. i'm talking about a consolidated case, alabama consolidated conference versus alabama. those two cases were consolidated and this will be the first time that the court has dealt with a voting rights act case since shelby kelly versus holder, which was the term before last, where the court dealt what i would say is

a devastating blow to the voting rights act of 1965. so this case is momentous for a number of different reasons and so far, in looking at the petitions that the court has granted, this is going to be the case of the term unless one of the voting id cases makes its way to the supreme court and certainly wisconsin is vying for that honor, so we'll see what happens there. otherwise i think this will be the election law case of this term. and as you could hear from the age of the parties, there are partisans dimensions to this case and there is also the main issue on the table which is the racial concern. so the alabama democratic conference is in fact a african-american political action committee. on the one hand. the other case, the alabama black legislative caucus consists of african-american legislators representatives in the state of alabama and both

parties are suing based on a republican-led state redistricting map that came out of the 2010 census. so every ten years, as you probably know, our states go through this phenomenal process called redistricting where they redraw the legislative districts for state legislators, for local commissions and even congressional redistricting. this is challenging the state legislative map. and as i said, this is a republican legislature, and the concern in this case is the way in which they configure the district, particularly how they included minorities in the district violated the equal protection clause, no matter what level of scrutiny you applied to it, but especially if you apply strict scrutiny which you would whenever there's an allegation that race played a

predominant role in the redistricting. so in a nutshell, 2000, 10 years before the 2010 census, in 2000, this plan was drawn up creating the majority minority districts, it was litigated, it was preserved in the voting rights act and a certain number of the majority black districts were created. when the legislature tried to update that plan following the 2010 census, it continued to keep the same percentages of black persons in these majority/minority districts as they had in 2000. now on its face, that doesn't sound like a preposterous idea or anything that's problematic. but if you know about the standard by which we judge the legality of majority/minority districts, you understand that cookie cutting an image doesn't necessarily yield a plan that's

constitutional or one that's consistent with the voting rights act. so the voting rights act requires, i'm talking about section 5 in particular, any voting change including the letting tiff map must not put minority voters in a worse position, it must not have the intent to do that and it can't have the effect of doing that. and we call that process or that measure of determining whether minorities are put in a worse position, we call that retro aggression, the plan cannot retro gress minoritying rights. so in this particular case, by including the same percentages of black population in the newer districts, the legislature did not take account of the fact that minority voting rights had actually evolved in ten years and that the same 77% black district that may have existed in 2000 didn't need to exist with such high concentrations of black voters in 2010. and that's really the crux of the concern there.

there are a few interesting points about this case, first as i mentioned, this is going to be the first time that the court opines on the voting rights act since shelby versus holder and in that case the court did not strike down section 5 of the act, which i just explained, but instead struck down section 4 of the voting rights act which creates a trigger for which jurisdictions would be covered bicekation 5. so basically it was the formula for deciding which districts would be subject to this retrogression standard. the court left section 5 intact. but we don't know if we're able to create a new section 5 or section 4, what the court would do with it. how well it would protect it and i think everyone is going to be looking at this case to read the

tea leaves on this question. it's the first time the court will be dealing with a race based gerrymander, which was a texas revisibilitying case in hunt versus crow marty, it's been quite some time since the court has dug into these political issues on the issue of racial gerrymandering. the second reason that this case is particularly important is because we are going to understand where the court places the value of compliance with section 5, the republican-led legislature, as i mentioned, created the majority/minority districts and said section 5 made me do it. the only reason we passed black voter into these districts at such high rates because the rates are roughly 65% to 77% in certain districts, the only

reason why we did this is because we had to comply with section 5 of the voting rights act. certainly what the legal defense fund is saying, with the brief that we filed. section 5 requires a much more nuanced analysis, it requires a district by district analysis of voting -- played into the legislative redistricting process, how much did race play a predominant factor, all of those particular questions need to be dealt with on a district by district basis. the -- so we're really looking at the contours of the anti-retrogression standards, and effectively what we're saying is that majority/minority districts can come in all shapes and sizes. it depends on the voters in that community, the communities of interest, general standards like continuity, general

redistricting criteria, all of that must play into what is a constitutional viable majority/minority district. another interesting tidbit about this case, is that the majority/minority districts that were created in the 2000 plan that i mentioned were challenged by republicans in 2000 when those districts came to pass. and now again fast forward, 10, 12 years later, and those same districts are being protected by the republican-led legislature and claimed as part of their effort to comply with section 5. the naacp legal defense fund where i work, we are a nonpartisan group, we are focused only on the ability of minority voters to elect candidates of choice and we submit that certainly by having a high concentration of black voters in these districts, minority voters are in fact

losing their ability to let candidate ca elect candidates of choice the way they could have years ago. how are we doing on time? >> we have a little bit more. >> let me just cut to what i think would be the most problematic decision the court can make. well, one the court has a few different options, it could simply remand and say, yes, the lower court brings this panel that dealt with this case in alabama could now revisit this issue in an appropriate constitutional standards. it doesn't need to actually decide this issue on it's face. i doubt the court will actually decide this on standing grounds, but that's also an avenue. what the court should not do is create a bright line rule as to what is the appropriate percentage for any majority/minority district, this is a fact intensive inquiry that requires a great deal of subtle

analysis and that is what we think the court should order and remand to the district court or deal with the constitutionality of these districts out right and not meet any racial quota. >> your comment about the republicans feelings about this then and now, i think it's at least politically, it seems like the problem with gerrymandering isn't gerrymandering, it's who's doing the gerrymandering is where it becomes consensus. we have about two minutes left in this segment, i want to give your colleagues a chance to comment or ask a quick question, if anybody has anything they would like to add to this segment before we move on. okay, thorough, that was a terrific briefing. anything that you would like to pick up on, please, we'll invite you to do that, or any cases that we don't flag for you, if there's something else you would like to discuss. next up, we have asked neil to talk to us about same-sex

marriages, something that is bound to be another contentious issue in this court and the court seems eager to weigh in. >> i do think that this set of issues is basically the greatest civil rights issue of our time. and the court has pending before it seven different petitions raising these questions about the constitutionality of same-sex marriage restrictions. the cases, there's three of them from virginia, there's one from utah, there's one from oklahoma, one from wisconsin and one from indiana. the court is going to consider whether to hear any of these cases at all on september 29, at their first conference. the justices have a nice long summer break, kind of like school children. they get a long break, they're actually working quite hard during that break, but they don't actually announce any new cases that they will hear. so september 29 is the first day when they will take up this enormously interesting set of questions. the first case was filed by the

state of utah at the u.s. supreme court and just by way of disclosure, i'm one of the lawyers along with an amazing team of folks across the country on the utah case, so i'm going to stick to really the public filings on this case and tell you what it's about. basically, utah has an nd 3 to it's constitution, which does a few things, it restricts marriage to that between a man and a woman, and that if you had a same-sex marriage in some other state and then you move to utah, they won't recognize that, it bans all benefits and things like that for folks who have same-sex marriages or who have civil unions. they say that also, we're not going to give any such benefits so. the plaintiffs, three different coupleless challenged that saying essentially this is unconstitutional, it's a denial

of equality. and they won in the district court. and indeed, i think there have been 31 or so cases across the country in the last two years and the challenges of 130 of those 31, those numbers might will slightly long, but the laws, the restrictions have only been upheld by one district in louisiana and about 30 courts say no, that violates equality. when any law gets struck down, that's a big deal for a court. chief justice roberts says that's the most solemn duty of the court is to strike down a law as unconstitutional. because what that means is even if the american public wants that law, they can't have it, it's off the table, even though 99.9% of people want the same-sex restrictions, it's off the table. it's something that's done really wearily, because it's an

awesome power given to an unelected federal court. the plaintiffs here were able to convince the district court judge that it was unconstitutional, utah restrictions. it then went up to the 10th circuit court of appeals which also found it unconstitutional. and now the state of utah have asked to the supreme court to come in and say we have a right to pass the laws that we want. it's our political process. marriage is traditionally a state responsibility, it should not be up to unelected federal courts to decide who should get married and how. and they have some -- they have some fairly strong arguments. they point out for example that the equal protection clause was passed in 1868 and nobody in 1868 would have thought that it would be something that would prohibit states from banning gay marriage.

of course, the challengers say, well, that's not the right way to look at it, because those folks in 1868, also didn't believe in desegregated schools, they didn't believe in striking down interracial marriage. but of course the supreme court unanimously did that in 1967. so the equal protection clause has some of all of these elements. the challengers also say, well, what's the reason for the law? sure, states, you have prerogatives in general to regulate marriages as you see fit. but you have to articulate some reason for doing so. and the state's reasons, they find lacking and this is one in which the states in general have had some difficulties coming up with reasons. some of the old reasons like procreation and stuff has been pretty discredited by the social science editor, so that's one of the interesting facets about these cases. when the 10th circuit ruled and struck down utah, they put their decision on hold, on ice and

said supreme court, we're going to wait for u you, so that's where the law stands in utah right now. as as the challengers actually did something rather unusual. as i say, the governor came in and said, we want supreme court to hear this case. even though we had won this case in the court of appeals, we told the supreme court the same thing, we said, supreme court we won, and we're confident we can win again before you, give us a hearing, grant this case. and let us have our shot in court and win a nationwide ruling, because right now it's an intolerable situation, if folks are in utah, they can't have their marriages recognized, even if they have lived in another state, had to move to utah for work or something like that. and so you had a path work from state to state and no one has certainty, so the idea behind acquiescing in the documents that the utah government decides is to say let's just resolve in

thing once and for all. the second case comes from oklahoma. that's a case also coming from the 10th circuit. the issue here however is only one thing instead of two, it's only whether oklahoma can prohibit same-sex marriage, it doesn't have the recognition issue, the issue of say someone being married in california and moving to oklahoma. for that reason the challengers have suggested their case ask even better than the u utah case, because it's a little cleaner, it's only one issue instead of two, and they're represented by the ygentleman wo won that cell phone case, whi. the third, fourth and fifth cases are the trio of virginia cases. these are all cases brought by the clerks in the state of virginia that said, look, virginia law restricts marriage to that between a man and a woman, and we don't want to give these licenses to same-sex

couples. the virginia attorney general, because of a election flip has refused to actually defend virginia's law saying it's unkojsal. so it's the clerks that are defending the law and they are before the court also saying take our cases, the fourth circuit court of appeals, which is virginia, maryland, north and south carolina and west virginia, they should, that fourth circuit decision struck down the virginia law, they're saying the fourth circuit decision is wrong and the court should hear that set of cases. there you also have two remarkable lawyers, first ted olson, who was president bush's attorney general, for the last couple of years has taken up this cause saying marriage equality is his battle and the battle of the country, you also have paul smith who is a lawyer in private practice who argued the texas case a few years ago which struck down bans on sod my, struck down fans on sodomy

and as unconstitutional. again, enormously talented legal team there, finally two cases from indiana and wisconsin, these are cases very similar to those before in which you have both marriage restrictions as well as the recognition of people moving into those states and whether those are recognized. the interesting thing about the wisconsin and indiana cases is that opinion author for the court of appeals to strike down these prohibitions in wisconsin and indiana was judge richard pose never, appointed by president reagan, consider quite a conservative jurist, a libertarian but conservative jurist, he just made mincemeat of the argument the state was putting forth. both in his oral arguments and in his written opinion. that will give some ammunition to the challengers of these bans.

so we should know pretty soon what the court's going to do. the court has justice ginsberg who made some public statements last week, saying, suggesting maybe that the court might want to wait for another court of appeals, the fifth circuit, which has a case from michigan before it, before the u.s. supreme court gets involved. they don't have to take anything. one of the greatest powers of the supreme court is the power not to decide. so you come in and you heard before, points about how the court has a diminishing docket. last year they decided 6 cases, 20 years ago they decided 150 cases, they get 10,000 cases a year, so it's really hard to get your case heard by the supreme court and they're always looking for reasons not to hear it. so they might say, you know, let's wait, let's wait a little longer. but there's a pretty good argument that at this point in time, the patch work is such that people living in an intolerable state of legal limbo, that why you have that

remarkable agreement by the two warren camps, but the states and the governors who are against same-sex marriage, and owl of these challengers bringing these cases saying here's one point, here's another point, supreme court hear the case. >> neil, about 31 states or so still have bans s that right? >> i don't think it's that high. i think it's less than that. >> what are the chances that a ruling is made in any of these cases that wipes that away, that ends any discussion that decides this definitively? >> i think if the supreme court gets involved in the case and grants the case, they're going to grant any of these seven, they're taking it to resolve the issue, so the issue, 100%, if it is one of the cases granted, that it will be resolved. the court two years ago granted a case from california, there was some wiggle room there, they exercised their wiggle room so

we didn't get a decision. but at this point in time, the moment they take one of these, it's game over for one side of the other. >> any quick thoughts or questions? >> the day that the court decided the windsor defense of marriage act, you might have read the windsor opinion and said this is really just about the federal government having to respect the choices of the states, but now you have judge after judge after judge saying windsor made me do it, and striking down the state laws, isn't that sort of surprising? >> it's an unprecedented number of state laws that have been struck down in the last two years. i can't think of anything in our lifetime, perhaps ever in the history of this country that you have had state law after state law after state law struck down so quickly. you're right, it's one thing as

in brown versuses board of education -- windsor didn't quite do that, you had to interpret windsor, and you're absolutely right, judges from all parties across the country are interpreting it in one way. >> another terrific briefing and leslie kendrick is up next, and leslie is going to be talking to us about first amendment cases. >> thank you, john, i want to thank everybody at the aba and the wilson center for putting on this event. i want to talk about the -- the supreme court is considering it's first amendment fatal attraction. we heard about their diminishing docket and actually i think on the first amendment side, the supreme court sometimes grants cases where it's not very clear why they're taking it. they're not apparently, given the is outcome, they're not taking it in order to overturn a

judgment from a lower court, there's no clear split. sometimes all of the lower courts have been agreed in the proposition that the supreme court ultimately endorses. it seems like the roberts court has never met a first amendment case it didn't like, and it's rarely met a first amendment plaintiff it didn't like. but this term is like actually taking a couple of cases where a clear answer is needed. they're doing some hard work here, i think cleaning out some cluttered closets of the first amendment. place where is lower courts are in disagreement and everyone's a little bit at sea. so the first of these is a case called alonis versus united states. this is a case involving so-called true threats doctrine. so a little primmer on first amendment law. there's a lot of speech that's protected by the first amendment. there's a lot of speech that's not protected by the first

amendment. and this is a question of when is threatening language protected and when is it unprotected? and here's the question. in order to be unprotected, in order for the speech not to be protected by the first amendment, does the speaker have to have intended to threaten someone? or is it enough if a reasonable person would think that this is threatening language? so if you have a subjective intent standard, where you ask about the state of mind of the speaker or two you ask about what an objectionable speaker would take away. you have to have intended to make someone feel threatened. so this case involves a man, mr. alonis, and i should say the university of virginia where i work, their supreme court litigation clinic is representing mr. alonis in this litigation. i'm not involved in that

litigation. i'm not here on behalf of mr. aloins. he was convicted for some very choice language on facebook about his ex-wife and some other individuals. i think in the colloquial sense, many of us would say it was possibly threatening or at least we would say it was fairly disturbing, and the question is whether legally it can be counted as a threat. all we need to know is whether an objective person would find this to be threatening language. so he sought review by the supreme court to settle a disagreement among the circuits about which of these standards is necessary. and i have got to stay, if you know anything about this area of law, you might have thought this question seems familiar. you might have thought that the supreme court actually has decided this question before in a 2003 case called virginia versus black in which it dealt with the true threat standard

and said that threats by the speaker are those where the speaker means to communication an intent to commit an act of unlawful violence. or it says that the statements must be made with the intent of the placing the victims in fear of bodily harm or death. you might have taken away the impression that this was a subjective intent test. but i'm not clear that that was actually what they were focused on in that case. that state was a statute that required -- maybe that's what they were talking about. if they did mean to make intent a requirement, a constitutional requirement, rather than something that the statute just happened to include. they didn't really tell us why intent would be a requirement. you might ask from a first amendment stand point, why do we need objective intent on the part of the speaker? you might think, otherwise it's going to chill speech that we

want to protect. you go around with speech that someone sees as a threat. maybe that chills your speech, so you're not going to be as likely to speak out. so you might wonder if intent is necessary to avoid chilling problems. knowledge is enough, maybe recklessness is enough. maybe just negligence, you should have known that people would think this was threatening. so it's not clear that you need it from a chilling effect perspective. and if it's from some other perspecti perspective, the court hasn't really made clear why or what that is. arguably, they have decide there had question before, but arguably they weren't totally focused on it when they decided it. and, hey, they're the supreme court, if they want to decide it twice, they can certainly do that. the other cases, lee versus the town of gilbert, it has a signage law, some of you may be familiar with your own city's law about sign naj, about

permanent signs, how long they can be up and where they can be up and that sort of thing. all the beauty of local government. and the town of gilbert has a law that treats different kinds of temporary signs differently. so it has one set of rules for political signs, one set of rules for it logical signs and then another set of rules for all others essentially. the good news -- they show people where to go to come to the services, you know, pull in here to go to the service. and those signs are treated differently from the political signs and from the it logical signs, they have to be different sizes and they can only be out for a set amount of time. so the supreme court has said, famously, above all else, the first amendment means that the

government has no power to restrict expression because of its message, its ideas, it's subject matter or content. and the question is, is that what's going on with this sort of sign law? so in previous cases, any type of classification based on subject matter, anything that restricts speech based on subject matter, like different treatment for political things or it logical things or other things, the supreme court has frowned upon. and by frowned upon, i mean ridiculed and ill validated. but when it comes to signage law, there's this issue because it means that probably they're not trying to discriminate against certain types of messages, probably what they want is to be able to regulate thes a threatic quality of their environment but also giving room for campaign posters and different things that the city thinks is important.

so what matters is that the city treats things differently based on their content or is there a motive behind that or that there's actually some kind of discriminatory motive behind that. >> you were very polite in not quoting directly in the of the face book posts from mr. alonis. but are any of you familiar with them? what you know then is that the language is not ambiguous or unclear, in a certain context, they can clearly be perceived to be threats and what make this is more complicated, he's claiming to be an artist. >> so he claims that these are rap lyrics, which i would think of them more as kind of free verse maybe, but whatever artistic medium he claims to be a part of, i respect that. so there is a ton of questions floating around where one way in

which this type of problem could arise is one people are involved in artistic expression, where they don't intend to convey a serious threat, what they're doing is something that's creative. so this is a particular application of this larger question of what type of -- what type of intent is necessary in order for the speech to be unprotected and although the statements themselveses are, you know, pretty disturbing, the fact that it does remind the court, any rule you make is going to implicate artistic media, that's an important aspect of this case. >> jenae, please. >> yeah, it also has implications in terms of an evidentiary standard when we're dealing with criminal defense cases and this has come up already in a nun of cases and most jurisdictions have actually held that it is admissible to bring to the record violent rap

lyrics, artistic expression that seems threatening. so this is not just deciding that issue, i think it has broader ramifications and there is a stronger argument to say that that information is not or should not be admissible in a criminal defense trial, however if it isn't, then i can actually see it going the other way and allowing more jurisdiction. >> that's a very, very interesting issue. and this is by far the closest the supreme court has ever gotten to that evidentiary question. >> also in these cases, the court seems to be playing a can you top this game. i mean the funeral protests cases would have a law professor's worst nightmare for a hypothetical, you don't want the skprkt to upreme court to bg free speech law on the horrible facts of this case. i mean this one, what's next? >> i shudder to think. >> well, next up, the

indelicately in my notes -- and thank you for a terrific briefing, by the way, welcome to the club, you're our newest panelist here on the docket series. i have listed here, steve, other cases because put these into any category but there were other cases worth highlighting and steve graciously volunteered to be the go-to guy for the grab bag. steve, you're up. >> thank you, john. the first one i want to talk about neil talked about how same sex marriage is the civil rights issue of this era or this generation. sadly one of the cases i want to talk about is the civil rights era of about 40 years ago. it's a case involving pregnancy discrimination. in 1976, the supreme court ruled that discrimination in the workplace against pregnant women would not sex discrimination and therefore was not covered by

title 7 of the 1967 civil rights act. congress amended title 7 in 1978 passing something called the pregnancy discrimination act to say -- to try to change that. and basically say that discrimination involving pregnancy should be seen as gender discrimination under title 7. fast forward not quite 40 years, peggy young works as a driver at a ups facility in maryland. her job requires her to lift packages up to 70 pounds in weight. she takes a leave in order to undergo invitro fertilization to try to become pregnant. she succeeds and becomes pregnant. and when she tries to go back to work, her doctors tell her that she cannot lift packages more than 20 pounds without risking

her pregnancy. so, she asks ups, which is covered by its own collective bargaining agreement. she asks ups for an accommodation that's called a light-duty assignment. she would continue to work but she would be in a job where she was doing a lighter job that didn't require her to put her pregnancy in jeopardy. under the collective br gaining agreement, ups said, no, you're not eligible for a light-duty assignment and since you can't perform your regular job requiring 70 pounds you basically can't come back to work until your pregnancy is over. she eventually lost her salary and medical benefits under those circumstances. so, what ups says is our policy is that we're complying with the pregnancy discrimination act. we treat everybody the same

under particular work conditions. we're not discriminating against people on the basis of pregnancy. they say, we will accommodate people with light-duty work under three circumstances -- one, is if they had been injured on the job. two, is if they've lost their department of transportation eligibility for a trucker's license. and three, is if they're required or entitled to accommodations under the american's with disabilities act, meaning they have a disability. well, ups says pregnancy is not a disability under the ada. she hasn't lost her trucker's eligibility and she's not injured on the job. so we're not discriminating against her. we're treating her the same as we would treat anybody else. she doesn't meet those qualifications. so they refused to hire her. she loses benefits. she gets permission to sue from

the equal employment opportunity commission. the case goes up on appeal to the fourth circuit and the fourth circuit upholds ups's policy that this is non-discriminatory and so she's taken her case to the supreme court. the justice department, the solicitor general was asked by the court a year ago to weigh in on this issue before the court decided whether to hear the case or not. and it's a very interesting brief by the solicitor general's office. it basically says, virtually all of the federal appeals courts that have considered cases like this have gotten it wrong, including this one. but you could -- you, the supreme court, could probably wait for another set of facts or another set of circumstances before you decide this case. you don't really necessarily have to take this case. and furthermore, congress was amending the american's with

disabilities act to make it clearer that pregnancy could be considered a disability in some circumstances and the eeoc might adopt regulations that would make this case moot and resolve the problem. well, none -- congress did amend the american's with disabilities act law but the regulations didn't seem to solve the problem, so the supreme court has agreed to hear the case. one additional note about it, there are always a couple of cases every term that make wonderfully strange bedfellows and this is one of them. there's all kinds of coalitions of civil rights' groups weighing in saying she should be titled to be treated as if sherp diskrim nalted against on the basis of gender that her treatment violated title 7. there's also a coalition of pro-life anti-abortion groups that have weighed in in her

favor on the premise that discriminating against people who are pregnant provides economic incentives for them to get abortions and therefore that's not what congress intended when it passed the pregnancy discrimination act. it intended to facilitate childbirth and pregnancy and so they've weighed in on her side as well, which makes it kind of a fascinating friend of the court briefs. my other case -- that's one called young versus united parcel service. my other case is called holt versus hobbs. also a civil rights case of sorts. gregory holt is a prison inmate in arkansas who, as an inmate, is known as abdul ma leak mohammed and says that his muslim beliefs require him to grow a beard of at least half inch in length. the arkansas department of correction says, no, thank you.

they allow mustaches under their corrections rules and they have a narrow exception for quarter-inch beards for people who have dermatology kal problems. he is allowed to have a prayer rug. he is allowed to have a copy of koran. she is allowed to have a special diet. he is allowed to observe special muslim holidays. they say that a half inch or longer beard is a security risk. you can hide drugs in the beard. you can kind contraband, weapons, razors in the beard and they make what seems like a fairly compelling security argument. the problem with their argument is that, according to the justice department and other briefs, more than 40 states have figured out how to accommodate this kind of request, as has the federal bureau of prisons.

so it's a little hard for arkansas to maintain, you know, we don't know how they do it, but we can't do it. it's too great a security risk here. they say that one of the extenuating factors is that the prison in question is a prison farm where the inmates are not in individual cells, they're in barics-like setting and that creates greater security risk and they go off the grounds to work on the prison farm, meaning it might be easier for them to bring things back in to the prison. again, one of the counterarguments raised in the briefs is they don't seem worried about the inmates smuggling things in their clothe. they just seemed worry about their inability to keep him from smuggling things in his beard as a security risk. so it seems like a kind of strange argument to be able to maintain. but -- and this is all brought

under a federal statute, which i have to say the name of just for the sake of saying the name of it. it's ak row name is religious land use and institutionalized person's act passed in 2000. the supreme court has on at least one occasion said we need to defer to the expertise of prison officials when they say they are trying to maintain security. that could be a counterweight here in the way the court looks at this case. the legal standard, and i'll stop, is under this statute, the state has to have compelling reasons for adopting a policy that burdens somebody's religious freedom. the need to maintain prison security might be considered to be compelling reasons, but the second part of the test is that the state has to do it in the narrowest possible way, the least restrictive means.

and the argument here is that the state can't possibly meet that burden, that this can't be the least restrictive means. so that case is going to be argued early in the term in october. >> when it comes to predictability of what the court might do, how does this case compared to the hobby lobby, the last religious freedom case that the court decided on? >> i think the hobby lobby raised a lot -- >> in terms of predictability? >> i don't like to make predictions, but if i had to predict, i would say it's going to be hard for arkansas to overcome the fact that 40-plus other states. >> have figured it all -- and d.c. have figured this out. >> sometimes we think of the justices has nine cloistered people who are removed from daily life. prisons is one where i actually think they're getting it. they understand that prisons right now are operating with so much discretion and gett