the "new york times"? msnbc? one of the political parties? how about 1600 pennsylvania avenue? the safest place for american freedom is the national rifle association. the safest place for american freedom is in the hearts of our members. so take back our country from the liars, the cheats, the press and the political elites who want to take away our ability to define our own destiny. join us, join the nra. we truly are freedom's safest place. thank you very much! thank you! [ cheers and applause ] our coverage of cpac's annual meeting continues now

with a panel discussion on privacy and security. we hear from fox news anchors lou dobbs and andrew napolitano as well as former cia director general michael hayden. this is 40 minutes. >> good morning, everybody. it is a great pleasure a great honor to be with you this morning. we're going to be i think very fortunate to listen to the voices of two leading advocates of the opposing viewpoints in the nexus between national security and constitutional rights. we are joined this morning by general michael hayden, who is without question -- [ applause ] -- one of this nation's most

distinguished and long-serving public servants. and amongst all of his other duties, he has also served the nation as the director of the cia and the nsa. which gives him some standing for this discussion today. and on my right my good friend and colleague, judge andrew napolitano. [ applause ] judge napolitano, a former superior court judge of the great state of new jersey, in which we both have the good fortune to live. i'm saying that only partially tongue in cheek at tax time, certainly. and a senior, senior judicial analyst, a refer to him as executive senior judicial analyst for fox news. great to have both of these gentlemen with us. [ applause ] we're going to follow the format

of presentations from each of them for a few moments about their views. then we're going to begin a discussion. i'll ask questions of each, beginning with judge napolitano. we'll follow up give each an opportunity to rebut or agree passionately with the other as the case may be. and with no further ado, judge napolitano. >> thank you, lou. [ applause ] thank you, good morning. i was in 1973, before most of you were born, i was present at the first cpac in the madison hotel in downtown washington, d.c. there were 25 people there. one of whom was a guy named ronald reagan. [ cheers and applause ] when i speak on privacy and security i often start out like this. i want everybody to take their blackberry, iphone, android,

whatever you have in your pocket, and turn it on, because i want president obama and the nsa to be able to hear everything i'm about to tell you. of course this is not a laughing matter. because they will hear everything i'm about to tell you whether you turn this on or not. because they have the ability to turn this on without you knowing about it. without going to a judge and getting a court order for your cell phone, they can listen to everything you say and read everything you write. how did we get there? my gosh, we have the fourth amendment to the constitution of the united states, to protect the quintessentially american right of the right to be left alone. the reason -- the reason we have this amendment is because the framers and the founders found

intolerable the concept of the british use of general warrants. a general warrant was an order from a secret court in london, authorizing the bearer of the warrant to search where he wanted, and to seize whatever he found. we fought a revolution so that general warrants would not come here, and we wrote a constitution so that the new government here could not do to us what the british had done to us as colonists. and in order to assure that we put the fourth amendment in the constitution. which says you have the right to be left alone. in your persons, houses, papers, and effects. and if the government needs to assault your privacy in your persons, houses, papers and effects, it must go to a judge and present evidence of probable cause about you. not about everybody in your zip code or your area code, but about you.

quote, specifically describing a place to be searched or the person to be seized. this applies whenever the government wants to search or seize. whether it's for criminal purposes, tax purposes, intelligence purposes, or whether because they just want to know what you are doing. fast forward to today. the secret courts that our forefathers fought against in the revolution are here in washington, d.c. so secret that the judges on the courts have been sworn to secrecy. so secret that the judges on the courts are not permitted to keep copies of their own records. so secret that if you knew about it, you would say, this is a violation of the fourth amendment, because these are general warrants that authorize the nsa to listen wherever they want, and take copies of the

contents of whatever they listen to. we've come 180 degrees from fighting a war against those who would violate with impunity our right to be left alone, to hiring public servants who will do that to us. we are in a twilight era. where freedom is diminishing. because with the exception of people in this room, there is very little outrage. no matter how grievous the ç violation of constitutional liberty, if there is no outrage, the government will continue to do it. general hayden will tell you, and in my view general hayden is a patriot, whose entire career has been devoted to defending the country. [ applause ]

general hayden will tell you when he speaks that the line between privacy and security can be moved by him. not by the court but by him or whoever his successor is in the nsa. there is no principle of law, there is no constitutional principle, there is no security supreme court ruling that moves that line. because your right to be left alone is a natural and personal right. only you can give it up. the majority cannot take it away from you, and certainly american spies cannot take it away from you. [ applause ] i hope after this morning you'll be outraged. [ applause ] >> general hayden. >> okay. judge, it's beginning to feel like an away game for me here.

if nsa were doing, if nsa were even capable of doing what the judge has just outlined for you, we wouldn't be having a debate here today. there would be nothing to argue about. let's talk about reality. let's talk about facts. the judge is an unrelenting libertarian. [ cheers and applause ] so am i. and i'm an unrelenting libertarian who's also responsible for four decades of his life for another important part of that document. the part that says provide for the common defense. [ applause ] let's talk about specifics.

right after 9/11, the congress of the united states had something called the joint inquiry commission. it was an unusual body. it was a combined house, senate, intelligence committee inquiry into what went wrong on 9/11. one of the most telling aspects of the document they came out with, we had a shorthand called the jic report, that nsa i was the head at the time nsa was far too conservative, far too conservative when it came to the most important kind of terrorist communications there could be, terrorist communications one end of which was in the united states. so our charge from your elected representatives, and actually from the president, was be better able to respond to that kind of threat. now there were tools available to us but we understood the

constitution and so we looked for the gentlest approach possible. the one that would squeeze american privacy the least in terms of responding to that particular charge. how do you detect terrorist communications entering or leaving the homeland? because after all we'd just been attacked from the homeland. we hit upon metadata. met adata defined as information about a communication. a call, to, from, when, how long. despite what the judge said about writs of assistance and constitutional protections, the controlling legal authority with regard to metadata is smith versus maryland, 1979, in which the supreme court held 5-3 that metadata is not constitutionally protected. and we therefore struck upon

metadata again as the gentlest way in which we could balance the two demands of our constitution. your security and your liberty. there were other tools available. we were accused of using some of these other tools. the judge came close to accusing us of those other tools just a few minutes ago. we were accused of having a driftnet over deerborn, michigan or fremont, california and sucking up the content of phone calls of american citizens and then searching those phone calls for keyword searches looking for words like bomb and things like that. that never happened. we never got the content. by the way, we never even collected the metadata. there were no metaphorical alligator clips on some metaphorical wires here. we actually got the billing records. the billing records from large telecommunication carriers in the united states. so those who claim that i know when something is of interest you can click on that number and see the content, that just doesn't violate the laws of the united states. that would violate the laws of physics.

there is nothing there that allows that to take place. so we gather this metadata. we put it in a large repository. truth in lending, judge, it's big. all right? practically speaking, it's a record of calls made within and between the united states and elsewhere over years. and billions, if not trillions of records. but now what happens to them? well, to use a phrase that's probably not popular around here, we put them in a lock box. and we access this lock box only under very strict circumstances. we have to have what's called a reasonable articulable suspicion. judge, it's not quite probable cause. reasonable articulable suspicion that we have a phone number associated with terrorism. a foreign phone number. so imagine, if you will, we roll up a safe house in yemen. we grab some guys we haven't seen before. we grab a phone we've never seen before, but it's associated with

these fellas who are associated with terrorism. we have a reasonable articulable suspicion that that's a terrorist phone. so what do we do? we get to walk up to this ocean of metadata, and we get to kind of metaphorically now yell through the transom, hey, anybody in here talk to this phone? and if we get a number in the bronx that kind of raises its hand and says well, i kind of talk to him every thursday nsa then gets to say well, then who the hell do you talk to you? i am now done explaining to you the authorities of the national security agency when it comes to this program. anything else that is done with that data has to go through law enforcement, not foreign intelligence processes. how many people get to yell through the transom, hey, anybody talk to this number? the last time i counted at nsa was 22. how many times did nsa yell

through the transom? in 2012 it was about 200 times. in 2013 it was 160 times. now, look, honest men can differ about this. i understand that. honest folks may even object to the existence of the database. but before we pass judgment, let's look at this in its totality and how it has been conducted. again, at the end of the discussion here, some of you may disagree with me. but i think we all should allow ourselves to think this ain't quite the british army parking on boston common. thank you. [ applause ] >> well, as the only

nonlibertarian on the stage, i'd like to address a couple of things and begin with whether it be general warrants or national security letters, the reality is most americans are pragmatic, judge, they want to be safe. they want to be secure. is there a resolution beyond saying that the fourth amendment, the constitution of the united states forbids intervention? because we know that as a nation we've had surveillance, we have expected surveillance. if we separate utilities, say, google and facebook from what was once at&t. i think most americans would have been mightily upset to find out at&t was not cooperating with the federal government and its respective relevant agencies. >> most people who defend the constitution and defend the concept of privacy do not object to all spying. they object to all spying all the time on everyone.

when the general and his folks have reasonable, articulable suspicion or a higher level, probable cause, they can go to a judge and get a warrant about that individual, and that's what the constitution requires. the good general took the same oath to uphold the same constitution when he entered the military and each time he got all of his well-deserved promotions to the rank of four-star general as i took for my terms on the superior court of new jersey. the constitution is the supreme law of the land. it governs the government wherever it goes, whatever it does, no matter what it's task is. if there's a problem with the constitution, amend it. but while the fourth amendment is there, it says if you want to search someone you have to present evidence about that person. >> when you say -- [ applause ] >> and when you say go to court i presume you're not talking about a fisa court. >> when i was sitting on the bench -- the general's probably

familiar with this. judges sit 24/7. it's sometimes a ridiculous assignment, and sometimes an unwanted assignment, because you have to be awake 24/7. and my friend judge royce lamberth who sits in washington, d.c. and occasionally 24/7, also friend of general hayden's famously signed a search warrant on the back of his motorcycle at 3:00 in the afternoon. and i've signed search warrants in my gym shorts in my living room at 3:00 in the morning. so judges are always available to hear emergent applications when there is probable cause about the target. the problem with what general hayden's folks have done is they've gone to a secret court and said give us the authority to listen to or gather data from and about all of verizon's customers. that's 110 million human beings, as to which there is zero evidence about inappropriate behavior on the part of any of

them. >> your response, general? >> sure. first of all, the jury should disregard the remark about content. because we've all made the case, this is about metadata. and again, we can argue about metadata. but it's not about content. it's about fact of call. and again i repeat the controlling legal authority is smith versus maryland, 1979. there is not a reasonable expectation of privacy that you or i have about the bill that your telecommunications carrier has about you. now, with regard to reasonable articulable suspicion or probable cause, the judge wants us to go to a judge. keep in mind what i said in my narrative here, all right? this is not reasonable articulable suspicion about the number in the bronx that i referred to. this is reasonable, articulable

suspicion that the phone we just snatched in yemen is affiliated with terrorism. by the way, the macro collection of the metadata since 2006 has been authorized by a court. and over the last two years, nsa doesn't get to yell through the transom, unless it does go to a fisa judge about the specific phone number in yemen. before they make the inquiry. >> satisfied? >> i'm satisfied that the general believes what he said. i'm not satisfied that it's even remotely consistent with the constitution. >> let me turn to another aspect. after swaerd snowededward snowden -- the edward snowed anne fair broke -- >> this is supposed to be a happy occasion. >> it is a happy occasion. and it's going to get happier. reality is this.

that we learned from general keith alexander who is running the nsa upon the inquiry as to his revelations. when asked about the number of conspiracies and planned attacks that were thwarted. the number given by general alexander was 57. we'll go with that number rather than the adjustments later. 57. what i wonder is why in the world the oversight committees, intelligence oversight committees of the house and the senate, why they didn't know that number themselves, and, two, why that number has not been in some way incorporated into analysis of the strategy of what we're doing. it's caught and arguably intrusions into american society. >> yeah. that's a great question. and it gets to the reasonableness argument in the front half of the fourth amendment. the judge is emphasizing the back half that no warrants shall be issued except upon probable cause. but you realize, certainly any of you who came here by

airplane, realize that not all searches are prompted or legitimated by a warrant. but it's the overall standard has to do with reasonableness. and lou, you're right. the judgment on reasonableness has to include the factor whether or not it's worth doing. do you get anything out of the other end? i mean, i understand the offense, you've got your phone bills up at fort mead or something and no good comes from it. you can't stand that argument. that doesn't go anywhere. keith, when he said 54, was referring to significant events where we were able to intervene, for not just the 215 program but the 702 program. it was the totality of things that snowden revealed with regard to american privacy. this is going to -- >> telephonic and digital. >> exactly right. this is going to offend the judge even more. remember i said we go to a court to get a warrant since 2006. i didn't go to a court to get a

warrant for four years at nsa. we were doing the ancestor of this program under raw executive authority. which, by the way, the fisa appellate court has upheld, saying that we take as a given that the executive has inherent constitutional authority to conduct electronic surveillance without a warrant for foreign intelligence purposes. so we're still basing this on a body of laws. we have learned a lot from this program. i went and looked at some notes from things we were able to show when i was doing it, through my time at the agency, which is 2005. about 18 months ago the president ordered the closure of about three dozen american consulates and embassies throughout the middle east. and as a matter of record, the president says to jim clapper, we've got a north american nexus to this threat? is this only about the middle east? and jim, because of this

program, because we were tracking the program through phone numbers, was able to jam those phone numbers up against the metadata program, came up empty, and said no, mr. president, we have no evidence that there's a north american nexus here. which is one very useful for security. but you realize it's also very useful for liberty. because if the president was genuinely concerned that it had a north american nexus, what were his other options? to give him confidence that he could keep you safe. >> a couple of -- a couple of comments. you only talked about the first half of general alexander's testimony, in which he testified under oath, in response to the either house or senate intelligence committee. i don't remember which. that it was 54 or 57 plots that were stopped as a result of nsa spying. the next day general alexander wrote to amend his testimony to say it wasn't 54, it was 3.

and when asked to identify the three, he declined to identify them. i could list a half a dozen plots that have gotten through. the shoe bomber. the boston marathon bombers. the copenhagen bombers. the revolution in yemen. the revolution in ukraine. you guys knew about that because you fomented it. [ applause ] the nsa's problem is it has too much information. it's listening to innocent people rather than focusing on those as to whom there is evidence of wrongdoing. i don't care, and the constitution -- and the constitution doesn't care who you listen to in a foreign country. i care who you listen to in the united states. and the constitution says the prerequisite is probable cause. [ cheers and applause ]

>> we're talking about the 215 program which has to do with metadata and phone bills. that is the high water mark of nsa with regard to domestic communications in the united states. once again, the judge has used the verb "listen." i challenge any of you to take your phone bill when you go back at home and put it up to your ear and listen. see what you can learn. >> and i think for the record we should also point out there are other agencies that have some responsibility, for example, in the boston marathon bombing and amongst them the fbi, which had direct information from the russians as to their concerns about those two brothers and some of their associates. it's always -- i don't know if it's comforting to say that there are more agencies who are not adequate to a given task.

but anyway, there it is. i would also like to get some idea of privacy as it exists and the national security interest as it exists in a nexus between the private sector and the public. and that is we have two plaintiffs right now suing the federal government, twitter and google, insisting that they have a higher standing and responsibility for privacy than even the government itself. is the effect of that suit, in my judgment. but where we have private companies, google, facebook, microsoft, they are cooperating, it seems, to greater degrees with the government, for example, of china, than they are with the government of the united states. it is a peculiar moment in our history. whereas we would once have expected these companies to be very, very cooperative with our agencies, they are, in fact, resisting. and doing so to what end i don't

think it's entirely clear to most of us, and i'd like to get your idea as to this conflict between private interest and public. >> i don't like any more than anybody else if google or verizon or at&t shares my e-mail with you with the government of china off the government of the united states. if i'm a google or at&t customer, they have a duty under our contractual relationship to respect my privacy. however, the fourth amendment only governs the government. it does not govern private entities. >> correct. >> and if google wants to disseminate my e-mails to lou dobbs or general hayden, they can do so, and it's my obligation then to find another carrier. the problem is, that the -- that the federal government of the united states, through general

hayden's former colleagues, have pretty much said to google, open everything up for us. let us in there. we don't want to go to a judge. we don't want to have to -- have to come to you. we want to be there, present, in your facilities, so that when we need to read an e-mail or listen to a phone call or learn the metadata, we're right there and we can get it. and they all caved. >> your response? >> wait for the applause. >> okay. [ applause ] >> come on, you can do better than that. >> again, if nsa were doing the things the judge just outlined we would not be having a debate. all right? he kind of echoed what's called the 702 program which allows the national security agency to approach isps, internet service providers, e-mail providers, with specific foreign e-mail accounts that have been warranted by a judge in a general way, admittedly, foreign

e-mail accounts that the agency can then access for foreign intelligence purposes. you mentioned the boston marathon two or three times. let me come back to that. it's kind of a little morality play from what we're talking about here. the judge mentioned -- >> is it a one-act play? >> i can be very quick. the judge mentioned it as a failure. all right? and the nsa and other agencies, have been criticized, these two kids the tsarnaevs, they were out there surfing the web for jihadist websites. in god's name, what are you people doing? how didn't you know this? well, the reason we didn't know this is that we do not look at the web activity of american citizens or legal permanent residents in the united states. this isn't this open-ended activity that's been suggested up here. this is actually very narrow. and the national security agency, and other elements of the security structure, actually have chosen not to do things for

your privacy that unarguably would actually make you a bit safer. >> may i ask the general a question? >> no. [ laughter ] yes. >> does the head of the nsa have the constitutional legal authority to move the line between privacy and surveillance? [ audience members yelling no ] >> there's a clue how they would like you to answer. >> it's a trick question because i know how he answered it last month that a law school. >> at washington elite? >> yes. >> you want the rest of the story? >> yes. >> this may be a two-act play. but i'll give you the executive summary. i'll be efficient. what i did the afternoon of 9/11 had to do with something called minimization. you know, the accusations fit on a bumper sticker. the reality takes a little longer. and i'm sorry. but minimization is what nsa

does when it inadvertently, incidentally, incidentally, collects information about you. i mean, the nsa could be targeting a foreigner, that foreigner. that foreigner talks to you. nsa is still targeting the foreigner. in the routine conduct of its business, it gathers information to, from, or about what we call protected persons, which is actually a bigger group than u.s. citizens. when nsa does that, nsa is required to suppress -- required to suppress the u.s. identity. so, in other words foreign terrorists abu ahmed bad guy was talking to a known u.s. person, we won't say the judge just a known u.s. person. and we minimize the u.s. identity to protect your privacy, unless of course, the

identity of the u.s. person is absolutely essential to the intelligence value of the intercept in the first place. and so i've got a bad guy talking to that phone number in the bronx and says, brother the attack tomorrow is at noon. i think the u.s. person identity is pretty important to the intelligence value of that report. so that, on the afternoon of september 11th 2001, with 3,000 of my countrymen dead and smoking holes in two cities, and in countryside and my native western pennsylvania, i told the nsa analyst, when they were making the judgment based upon the reasonableness standard of the fourth amendment, when they were making the judgment as to whether or not the u.s. identity for calls from afghanistan, whether or not the u.s. identity was essential to understanding the intelligence value.

they should use a different standard than they used at 8:00 that morning. that's the line i move, judge. >> you asked. [ applause ] >> somehow, i didn't hear you use the word "constitution." >> so then -- >> that document to which you swore an oath of fidelity. >> so then i told george tennette what i was doing and george told the president and vice president. and then i called up the chair and ranking members of the house and senate intelligence committees and told them what i was doing. i offered to come down to explain it to them in detail. the senate said, fine you're cool. the house said, come on down. and i did and explained it in detail to our oversight bodies. by the way, talking about oversight and secret law and so on, you know the strongest defenders of what nsa has been doing has been the chair and ranking of the two oversight

committees. have been the chair and ranking of the people most knowledgeable, most responsible for what they do. we talk about ron wyden which has certainly option to all of these programs. the reason senator wyden has been so public is that again you may agree with him and not me, but in the committee, which knew fully of these programs, he consistently lost the vote 13-2. >> if i may, i would like to go to the short time we have available here i would like to go to what i think is implicit in this discussion. and that is a lack of trust in our government on the part of the american people. i would like to go further and say to you i believe personally, that that lack of trust is one of the healthiest aspects of our society today. that decision, that challenge, and that insistence again, in my judgment on a strict interpretation of the

constitution, will, i think, help to preserve, god willing this constitutional republic. i think it is also important that we understand that that trust, you mentioned the heads and ranking members of the senate and the house intelligence committee. well my view, and i would actually both like to get your assessment they have not provided vigorous and broad intelligence oversight. there is not that perception. congress has one of the lowest approval ratings in history right now. the president of the united states, the same may be said of him. the openness and transparency has certainly not evolved from this presidency. we know that there are great and good public servants like general hayden but we need far more in the way of assurances that that constitution is being observed, that we share national values and the national interest. and i truly believe the american people right now have profound,

persistent doubts about that reality. >> may i comment? >> sure. >> yeah, lou's absolutely right. and one of the challenges that people like me have had is that this discussion is taking place in a perfect storm of both governmental and executive overreach. all right? so how well or often i might argue the appropriateness of this. i know it's happening in a broader context of the irs and i've got a pen and a phone and we can't wait and the president's deciding whether or not the senate was or was not in session for recess appointments. it poisoned this entire discussion. and that's why i go out of my way to say but let's talk about the specifics on this one. so that we can make that judgment. >> but what also poisons all of this is the lack of accountability and lack of transparency, because of passion for secrecy with which the government has argued. you see what the general did not

tell you is, when he goes to these committee members and reveals what they're doing and the committee members say, yes, the committee members are sworn to secrecy and cannot tell their fellow members of the house and cannot tell their fellow members of the senate and cannot tell the voters who sent them there. so the government has intentionally created a secret deep government, if you will, and sworn everybody in there to secrecy, including the judges who have been accomplice sitcomplicit in this. the essence of democracy and freedom is that the government works for us. we don't work for it. [ applause ] and so we have to know what it is going. >> the judge brings up an incredibly important point and he and i probably agree that my old community needs to be more

transparent, all right? but let's be real about this, okay? you don't conduct espionage by plebosite. espionage is an activity that succeeds only because of secrecy. now, the grand compromise -- and by the way we're still the only western democracy that does what i'm going to describe for you now. the grand compromise of the mid- to late 1970s that something espionage, which previously was the province only of the executive, will now have oversight from other branches of the government. out of the '70s come the oversight committees which by the way, don't exist in other dplox democracies. we have the house and the senate oversight committees. i am legally and morally responsible to keep them fully and currently informed of what it is we're doing. and then -- and no one else does this -- we brought the court in. now, i understand it's a fisa court. and the judge says a fisa court is weird because it's secret. i'm telling you it's weird because it exists. no other western democracy goes

to a court to conduct espionage. so when we're looking at this from nsa, with the balance between secrecy needed for success and transparency needed for approval, we're saying this was authorized by the president legislated by congress, overseen by the court. i'm sorry, folks, that is the madisonian trifecta. >> thank you. >> thank you. >> i want to say, thank you, first of all, and what a pleasure and honor it is to be with judge napolitano, general hayden, great to be with you. >> thanks. >> it's an honor. and i would say if i may, general hayden, as long as we have men like yourselves and the judge contesting big issues and big ideas in talking about this nation's interest in our great constitution, all men and women who appear here will be playing at home before cpac. thanks so much. [ applause ]

with live coverage of the u.s. house on c-span and the senate on c-span2, here on c-span3, we complement that coverage by showing you the most relevant congressional hearings and public affairs events. and then on weekends c-span3 is the home to american history tv with programs that tell our nation's story, including six unique series. the civil war's 150th anniversary, visiting battlefields and key events. american artifacts, touring museums and historic sites to discover what artifacts reveal about america's past. history book shelf, with the best-known american history writers. the presidency looking at the policy and legacies of our nation's commanders in chief.

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