made on who to target, where i think that is something that there should not be transparency on. and to me, the founding error in the metadata program was that when president bush instituted it and president obama continued it, they didn't have an open discussion about whether the country should have such a program. and actually that seems to run through a little bit of yesterday's opinion by judge lynch. even dick cheney. this is something that i discovered in writing this book that nobody had ever seen before. when he wrote his dissent in the iran-contra matter, he said if you have a hard foreign policy or national security issue, a wise president first would not engage in excessive secrecy, and, second, a wise president would have a full and open democratic discussion in which he would attempt to persuade the

public of the need for validity of a broad program. >> the concept delineating between the number of people affected or how targets are picked, versus the program itself, i think is valuable, and it gets to a question that i would like a from everybody on. there is a trust problem that now exists, for whatever series of reasons. >> an example of a concern that i at least have was revealed through a "usa today" piece that came out last month that revealed that the dea had been conducting a metadata collection program ten years before 9/11. one of the concerns and maybe this is pessimism or paranoia depending on who you ask, is that stopping a program like the telephone metadata collection program that is ongoing under

authority, how do we know it does not show up under another 30? it is a sincere question that pre-much everybody, because there's no reason to hold the community to such a paranoid standard, but how do we get to that point? >> i think this question is a real challenge because of the compartmentalization of the staff they do for information protection reasons, but you have to ask the question read what, and you have to parse the answer in order to ask follow-up questions. when you ask, are you doing this under this authority or are you doing this, meaning the witness at the table in front of you, that individual may only know a piece of it, and they may say, no, i don't.

but that doesn't mean it's not lurking out there in some other corner of the agency and some of the agencies are very big and even the witness may not know what is going on in every corner of the agent cig they are testifying on behalf of. so it is a real challenge, and one of the challenges for the intelligence committee is it is a relatively small staff while it's spread across a wide number of things, you may only be one deep on any particular program or any particular agency. and if that agency is billions of dollars to have one person going through that entire agency to determine if there is a program hidden in a corner of it, it becomes a difficult challenge without access to the kinds of add it tools available in other places. and the other charge almost -- it resembles a litigious environment in terms of questioning. it feels like opposing counsel deposition, where i'm going to ask you this question, now i will rephrase and at again. which -- i think a lot of people in the intelligent community come with a deeply engrained attitude. they are looking for ways to not

necessarily reveal everything. on the armed services side, what i found on a committee is when you ask questions, the answers were much more fulsome. they may say somebody else does that, but that is not my program, but let me talk to you about some of the things. the answers were much more -- much broader on the armed services side than on the intelligence side. >> does anybody else have any thoughts? >> i think a little dose of reality is useful here. number one, remember that the intelligent committees knew about these programs and knew about the bulk collection program. and by virtue of the -- our statutory requirement, if we do another bulk collection program you'll know about that as well, whatever authority it's done under.

number two, i think in the last two years the intelligence community has come to recognize the reality of leaks. and i think that it would be a brave intelligence official who would say, well we're going to go ahead and re-create a bulk collection program. number three, it's important to remember that this program requires the cooperation of the telephone companies. to be unlikely you would be able to secure the cooperation of telephone companies in a program that was re-creating this. so i think that the prospect that this program could be re-created under some authority. sure if you had a sufficiently wide conspiracy of people who were willing to disregard all of these possible outcomes it is possible. it is not going to happen. >> i would just say, though, i was on the committee at a particular point in time. and i would say serve on the committee is like the movie "memento." you only know the moment that you're in and don't have a sense of context before or after.

is probably true that post snowden leaks that the committee has recognize that without a greater transparency the committees than they did at the time i was there. i started it was democratic in the bush administration. so it was a little bit more adversarial. the idea that members of congress have the confidence to say we know everything that is happening and we don't -- then there is nothing out there if revealed we'd be upset about is r not something that they would have felt confident in saying. that was not just because of a suspicion, but because they had had examples of programs that they had not previously been briefed to that had been ongoing. and as a result, on the committee, we conducted an

investigation into what keeping the committee fully and deplete completely informed truly meant because they, as members of the committee felt they were not fully and completely informed. >> i have one thought. i think today the shelf life of secrets of major programs is far shorter than it was during the cold war, where you'd have some program secret for 30 years. i don't think that's ever going to happen again for a variety of reasons. "a," is that true? and "b," if it is true, what implications does it have for how the government and the congress should relate each other? >> i think it's definitely true. and i think that as i said -- i think we are now in the position where everything that is undertaken by the intelligence

community involved an assessment of what happens when this leaks out and is this -- is this program worth -- are the benefits we get from that program worth that kind of risk. >> if that is a change, it is a recent change. the d.e.a. program you started out with lasted 20 years and only came to light this past january. i would also say that to the extent we are talking here principally about section 215, section 702 and maybe fisa's trap and tracing, we are leaving aside a huge number of programs that operate under executive order 12333. and staff may know what level of oversight exists over those authorities, but some statements by the members of the intelligence committees have suggested that the committees were not fully informed about those programs is by the fact that they have had significant

indications for the indications and privacy of u.s. persons. and i think that is supported by recent reporting that the senate intelligence committee is working even now on compiling what is called an encyclopedia of executive order 12333 program so maybe there has been an uptick in the oversight of those types of programs but i don't think that historically and necessarily before 2013 that was the case. >> and what reform if you have an idea would convince you that was not continuing or had a shorter shelf life or weren't bulk? >> a different type of congressional oversight. one possibility would be to have congress involved in assessing in a way that fritz talked about the church committee and we are talking about transparency today and making some of the assessments around what should be disclosed to the public, what

types of high-level description of the authorities the government wants to use can be usefully disclosed to the public and to the extent that the intelligent agencies want new authority and to the extent that the debate around usa freedom is whether we are confining the types of requests that are made to targeted grand jury like requests or whether usa freedom is designed to open up the door to data mining of americans' information. i think that's the type of debate that we believe should be happening in the public sphere and that the opinion yesterday suggested should be happening in the public sphere. >> could you briefly run -- >> could you briefly run through what was happening yesterday. >> sure. yesterday the second circuit decided aclu versus clapper which was a challenge to 215 bulk collection, bulk phone records program. the case was decided on statutory grounds. the court concluded the plaintiffs had standing to sue, that their statutory claims were

not precluded, and that the bulk collection of phone records was not consistent with the authority that congress granted under section 215 when it passed that law or when it reformed 1861 in 2001. >> and the order is staid, correct? >> it was remanded to the district court for orderly resolution of what happens next in the case. >> bob, i have a jurisdictional question that i honestly don't know the answer to. the court of appeals for the second circuit, they say that this is unlawful. obviously there's an opportunity to appeal to the supreme court. but the fisa court of review is also an appeals court. does fisc have to listen to this opinion if it stands? >> i'm probably not the right

person to ask that. i think the answer is no. i don't think that the second circuit of appeals has direct authority over the fisa court. it is something they would take in account, but i do nothing this binding upon them. >> does that change given that the harms that the second circuit acknowledged are felt in that jurisdiction? >> again, i'm not an expert in appellate jurisdiction. i do not think that is relevant to the question whether the second circuit has binding authority over a court that is not within the second circuit. i do not know, patrick, if you have a different view on that -- >> but the injunction would be. if they got to the point where they issued an injunction that would be binding against -- >> it wouldn't be binding on the fisa court. it would be binding on the persons who received -- >> the defendants in the case are the agency officials.

so an injunction of the second circuit would be directed at those officials. >> but there is no injection. -- injunction. and i have to think that that -- i don't have to think. the court made quite clear that was a deliberate decision not to issue an injunction and allow this to play out in the political process over the next couple of weeks. >> this touches usa freedom, nobody knows what is going to happen with it. in the event there is not legislation that changes the recording requirements, would you expect to maintain this same level of transparency have now >> yes. >> and potentially looking to increasing it? >> we have for the last two years issued a transparency report and i would expect we would continue to do that. >> fritz, in your book, you have a number of harsh words for judicial sub serve -- subservience. they undermine democracy by discounting the relationship between american democracy and citizens' access to information about what the government is

doing. is this case a turning point? >> this is a court being more aggressive in an area where the courts for the last 20 years have not been. the judge you clerked for, potter stuart stewart actually back in the '70s expressed pretty powerful arguments worrying about too much secrecy. in the mink case, where the supreme court held courts could not look at foia documents, but they said they ought to amend the statute, which the congress

did, potter stewart said, well the secrecy system leads to cynical myopic and even corrupt decisions and then in the pentagon papers case. i'm picking on you because you clerked for him. complimenting you because you clerked for him. in the pentagon papers case, potter stewart said if everything is classified then nothing is really classified. the courts were pretty open to challenges to the government under foia and in some other areas. and then they started just automatically deciding in favor of the government over the last 15 years, at least. i think they're afraid. they're afraid they could be wrong and they're afraid to do

what courts often do and deal with subjects they're not experts in. i think the courts themselves say this. the several respected judges say that we roll over in cases that -- where the government -- a foia case and a state secrets case where the government raises a defense or in the foia case tries to deny information. maybe this is a harbinger of courts being more willing to stand up. of course the climate always makes a difference. and they're reacting to how the public and the congress reacted to snowden and they're saying, hmm, maybe it's not quite so scary as we thought to go against the government. >> i want to move on, because -- again the time. mika, how might this ruling influence the politics of this, the congressional will? >> i think the second circuit put this back in congress' lap and said, look, congress did not

explicitly authorize this bulk collection program under 215 and if they want to be explicit about that they need to act. they made note of the time line. but their analysis of the 215 program suggests that they would not look kindly upon it the way that it's currently constructed. i also think that the politics of this right now here in the house, it's unlikely that you would get a clean reauthorization of the existing program through. and so the real question for senator mcconnell is do you take the reform legislation or do you let the program expire? >> so to move on to instruction -- i want to highlight this. the first time i read about this is in 2013, it was a reuters report. detailed and i will ask patrick to explain it and bob to

comment, but to present the severe dissonance that exists in terms of what this is. nancy, i think patrick, you may have clerked for her, described it as phonying up investigations and said she'd never heard anything like it. and senior dea officials called it decades old, a bedrock concept. and nancy was a judge, by the way. patrick? >> so just to describe a little bit what we see in some of the criminal cases we litigate and what the article described and subsequent articles have expanded on especially in respect to the dea's hemisphere program and the recent disclosure of bulk collection of foreign phone calls in and out of the u.s. parallel construction is an effort to construct a parallel source for certain evidence in investigations.

it often occurs in circumstances where we see it or believe it may have happened where the government investigators obtain information using one authority which is potentially controversial or novel or legally untested in the courts. and they rely on that authority to obtain information in the first instance. investigation proceeds with a benefit of that information and they subsequently obtain the same information using a more traditional law enforcement technique like a rule 41 search warrant or a subpoena for a billing records. one example would be relying on the hemisphere program or even the 215 bulk collection phone records program to identify a person via their phone records. building investigation, using that information, and then using a subpoena targeted at that now known person to obtain the same phone records, and when you end up in court, at the point of a prosecution, telling the defense only that the records were

obtained via the second method, via the tradition subpoena that doesn't raise any eyebrows. and never disclosing the fact that agents were tipped off or investigators relied on information passed by intelligence agencies that was obtained through fisa, executive order 12333, 215 or one of these other authorities. and this is a violation of the discovery rules and constitutional rules that entitle defendants to seek to have an opportunity to suppress the fruit of the poisonous tree, to argue before a court that the surveillance was unlawful and that the government's evidence is derived from that surveillance. >> if nancy says she had never seen anything like this, she is disingenuous. if you take references to 215

out and substitute for them confidential informant, this is something that has existed for decades. the government does not have to disclose the identity of a considerable informant who provided a tip that started an investigation. the relevant factor in terms of discover opportunity is the evidence that's being used at the trial against the defendant the fruit of other activities. and there is a well-developed jurisprudence about what is and what does and does not constitute the fruit of the poisonous tree, and including concepts like independent source and attenuation. and this has long been the law. it is no different in the concept -- in the context of these programs. the fact that a government agent was alerted to the existence of the defendant by a particular source does not necessarily give the defendant

the right to suppress that basis unless the evidence was derived under standard fruit of the poisonous tree rules from that tip. >> do those standard fruit of the poisonous tree standards apply in the context of bulk collection? >> why wouldn't they? >> i would add two things and say i strongly disagree that the identity of a confidential informant which it is true, there are cases that talk about whether defendants through a balancing test are entitled to get the name and the -- >> or the existence of the informant's tip.

>> i don't know if -- >> it is. i was a prosecutor for six years. >> but there is also the problem -- >> does the judge know in that context? >> sometimes the judge knows and sometimes the judge doesn't know. >> the other problem is that prosecutors are deciding for themselves what is derived from the surveillance. that decision is never put before a court, ever obviously put before the defendant, and the government has an interest in reaching a determination and from what we're seeing in the dea disclosures and structuring

its investigations and the trail of what is recorded in the agents' notes and reports and court applications to suggest that in fact those sources were not relied upon when they were. and that is problematic. the government has an interest in making the chain from point a to point b look attenuated as possible in order to avoid court review of these programs. and we have seen not least in the context of 702, that the government has used an extremely narrow definition of what qualifies as derived evidence. >> to bring us to the oversight perspective, but mieke, did you ever hear about this? would you have or should you have? >> i wouldn't have. on this question of parallel construction, how information is used in a court case, on the intelligence committees you are predominantly concerned about how the programs work and how they are used in a national security context. that was about traditional espionage and nation state adversaries. there's a lot of ground to

cover. the idea you would figure out how particular pieces of information be used by agencies not under the jurisdiction of the committee is not something that you would normally look at. and you know, this is also true when you talk about these old dea programs. two things working against the intelligence committees there. one is the memento problem. while the dea might have briefed the committee at the time the program was initiated, members of congress and staff turn over, and so over time, you lose that institutional knowledge and members of congress who come in a new congress will say i have no idea even though the committee might have been briefed a few months before that person was elected. and the second is that the intelligence committee is more focused on national security agencies and not a law enforcement agency. so we might not have spent as much time looking at what the dea was up to, assuming that that was covered by people

focused on other kinds of oversight. >> to bob, it sounds like there is at least one path here where the information is collected, analyzed. if an american turns out to be a defendant, the decision about whether or not the admitted -- is not considered by a judge. it's not reviewed by at least hi psi. perhaps by beside judiciary, but other entities that was just discussed. at one point it does their oversight? >> is routine in all cases that decision about what evidence is turned over the defendant are made by the prosecution. that is the way the system operates. it is the case that when intelligence surveillance authorities are involved there tends to be more disclosure to the judge of the existence of

those on a classified basis than there is in non-surveillance areas. fundamentally, this is the way to criminal justice system operates. the prosecution has a large file. it looks at rule 16 and the brady rule and determines what gets disclosed to the defendant. >> i'm like the hear from fritz but patrick, if you have a response? >> i don't think i have meaningful things to add to this. >> i think in terms of illustrating how deep this practice goes and what it keeps courts and defendants from considering, the dea program that is described in the "usa today" story is a good illustration. that is a program that has been around or was around for 20 years. it is a program that agents interviewed in that story said they consulted virtually every day. and yet that program didn't come to light in a criminal prosecution until 2015, until january of this year. and if -- if a program that's used that widely and is not -- i believe that program was not

even classified, is kept from defendants in such a wide range of cases i think there is a need to reevaluate how parallel construction is being used. and maybe more generally to understand the legal rationale that underlies it within the justice department and how these government agencies are make unilateral determinations about what is derived from what. >> i think we have to wrap up now. unfortunately, as much as i'd like to keep this discussing this. there was one last thing. this showed up yesterday. star in burr was voicing a serious and lengthy defense of the section 215 metadata collection program. he said, and i do not know if there has been time to clarify, but in the statement he said that 215 provides for the collection of all phone call records and i.p. addresses. now i don't know exactly if he

misspoke or something else. so i am not going to propose to bob something about whether or not this is ongoing because i suspect your answer would be that you couldn't answer but it's i do want to know as somebody who wants to know what the law is. >> we have been clear about what that 215 program is. it is a telephone metadata program. and that's all it is. >> but could 215 be used to authorize an internet dragnet? >> probably not. it -- i think there is some significance to the fact that it wasn't at the time when they instituted the telephone metadata program i think it is public knowledge that they

instituted an internet metadata program that used different authorities and i think there was a reason for that. >> i think that is fair. fritz, i just want to give one more chance you for you to comment. parallel construction conversation, detailed, but what is striking is there such a profound gap between understanding of whether or not it's legal or illegal. does that bring anything up for you? i mean -- >> the only thing i thought of is not precisely relevant to -- but i believe the nsa had in addition to this program of shamrock of picking up every telegram, they had a watch list program. and how people got on to that and what happened to the data that was collected i have the vague memory that two attorneys general looked at that and said that they didn't think that the way the information was getting from the nsa to prosecutors was appropriate. and they tried to put an end to

nsa providing the information from the watch list to prosecutors. what theory they had, i don't remember. but if i were look for history on this issue on either side i would go back and say what were -- one was richardson and another attorney general who said we don't like the way in which nsa information is getting to prosecutors. >> with that, i will stop the conversation portion of this and move on to questions and answers. if that's ready -- and i know that dan has a question. and i want to give him time. but if you do have questions, just raise your hand and matt will come around and provide a mike. >> my name is matt ramsey. i work at the the sunlight foundation. and direct the advisory committee on transparency. thanks for joining us today. mieke, you talk about the memento issue with congressional oversight. and members is there inadequate record-keeping around some of

these things to make it hard to track over congresses? i'd love to hear a little bit more about that. >> so it had been i don't know if that problem has been fixed. we had transitioned between spaces, and the challenge of finding congress' own legislative history, even the classified legislative history so you could go back and look at what congresses had done was quite difficult which reinforces the memento problem. trying to go back and find information that would not necessarily be in executive branch control but hearing records, internal documents prepared by the committee staff for the committee, having classified annexes which is a committee produced document, not having that history on site and readily available made it more difficult for members to be able

to do historical comparisons. >> one of the answers to that problem, which is a real problem, is the existence of the full-time professional staff and permanent staff of the committee and it's in fact a disadvantage to having staff members accompanying each individual member because every time you have rotation on the committee your staff turns over. these committees have people who have been staffers for many years and have the institutional knowledge that can help them with this. >> the senate have both. they have both a professional staff and the person who will help an individual member -- >> i know that leadership does not give them enough resources. >> they are terribly under resourced. it's horrible. >> i will quote you on that. >> dan? >> hi, dan from "the intercept." i wrote earlier this week about

how the nsa computers can and do extract text from voice, and is a pretty transformative technology. it certainly makes it a lot easier to search phone conversations in bulk. the public still wouldn't know about this but for the snowden archives. how could we possibly as a society debate implications or establish limits for technologies like this or is it none of our business? has congress been briefed on this? have they weighed in on this? >> dan, i think that story is what is wrong a lot of the media coverage of this and i think even edward snowden says that he thinks a lot of the press reporting has gone too far. that story made absolutely no decision between technical capabilities and legal authorities. there are all sorts of technical capabilities that nsa has. i am not commenting on the existence or nonexistence of any such authority. the question is when are they used and what are the legal authorities under which they are used.

and i think that that's something that a lot of the press reporting completely ignores including that story you wrote. >> how would i find out since i asked everybody. >> you know what the legal authorities are. we talked about that. you know the authorities under which nsa can collect. it doesn't use any technical capability to do things it's not allowed otherwise to do. >> anyone else with a question? >> thanks for all the panelists coming out today. really appreciate it. mieke, i'm former staff, and i did not work on the committee myself but i worked for one of the committee members, mr. holt who, bob, i think you knew and had quite a bit of interaction with. and one of the things he always complained about was this 20

questions problem. but the thing i want to ask today and this is my 20 question moment has the icig by itself or in concert with the other igs taken a comprehensive look at all of the surveillance programs and activities carried out "o" under all these authorities that you have discussed whether patriot act fisa or whether 12333? thanks. >> the answer is no. other outside bodies have been doing does, president's review group and so on. two, the resource implications of that and frankly the number of taskings that the icig gets from congress are such to make that impractical. so the icig has not done this. there was a comprehensive look a number of years ago. we just released some

governments that were declassified with a multi-i.g. look at earlier programs, and we have just released those. they're not been anything done in recent years. >> i have a quick questions and we have another one. fritz, should -- i don't know if most americans realize that there is a secret court, if you will, in america. is that appropriate? right? is there -- should america have a secret court? i guess it's just that simple? >> it is not so new, by the way. i mean, when you have search warrants granted in an ordinary criminal case it's done in effect by a secret court. and i think the existence of fisa among the public is fairly well-known. a fair question, to me, is,

shouldn't fisa do more to hear the other side and i think they definitely should and they would be well-served. it would make them better. it would make them more believable if they did more to hear the other side in arguments and whether that's as counsel for a target, which is a little difficult to do because they can't really reveal that someone is a potential target. or it's a general amica suit comes in. but in a way that remark of mine i think shows where fisa has been misused recently where instead of it deciding particular cases, which a court has jurisdiction to decide cases

and controversies and doing it in secret when you're deciding if someone's records should be looked at doesn't trouble me. but i think they were asked over the last years and they agreed to do tasks which really are not the proper role of a court. make judgments sort of on administrative issues. >> what about when they reach issues of law, to put it broadly? right? so the definition of relevance which is at contest -- >> it depends how it comes up. i don't think they should sit around as if they're second circuit in the case trying to understand what relevance means. i don't think they should sit around and just abstractly talk about what cell vent. i think to do that without an adversarial presentation is

inappropriate and far more likely to have them make mistakes. so they'd be better off in having a more adversarial process in any matter which is beyond a -- should jon jones' reports being looked at? >> people talk about special advocates, but that is a person but that's a person who is making arguments hypothetically in the abstract. what about the possibility that someone who was served with an order from the fisc could have standing to challenge that order to put adversarialness in the process? >> that's true now. people who are recipients of orders have the right to challenge. what the usa freedom act does is provide for ability for the creation of a panel, essentially a panel of cleared lawyers who the fisa court could appoint in the kind of case that fritz is talking about that presents a substantial issue of law or policy to come in and make an independent presentation that is

not now made. >> do you think the fisa court should be deciding policy questions as if they are sort of a little branch of the legislature? >> that is not different from what courts do in other warrant situations. there are cases where magistrates are presented with applications for search warrants with respect to new technologies and the judge has got to make that decision and the judge makes that decision in the abstract without an adversary presentation. the different here is that we are setting up a -- because there is less other review of fisa court decisions than there is of warrant applications we are setting up a process and i think the administration indicated it supports this, whereby when these kinds of issues are presented to the fisa court there is an opportunity to bring someone else in to present a different view. i think the distinction or one of the distinctions that fritz is talking about is the difference between a particularized demand for a criminal suspects or suspected foreign agent record and programatic review of the 215 program or minimization or targeting procedures that govern 702 surveillance. there isn't a particular person

who is the suspected foreign agent or the target of that surveillance that ever comes before the fisc. instead the fisc is weighing in on whether the procedures themselves, almost akin to whether the government intends to apply the right formula for when it decides how to go out and target people. but not any application to a particular person. and that even former judges of the fisc has commented that that change for the fisa court has been a significant one from where it started in 1978 and where it is today. >> i think it is true. what we've done is we've taken a whole category of activity that generally speaking and throughout most of the world have no judicial supervision at all, and up until recently was considered an inherent executive been a significant one from where it started in 1978 and where it is today. >> i think it is true. what we've done is we've taken a whole category of activity that generally speaking and

throughout most of the world is have no judicial supervision at all, and up until recently was considered an inherent executive function and we've brought the courts into the system. so actually, what it has done is it has increased judicial involvement in activities that previously had no judicial supervision whatsoever. >> i think this is one of the ways that parallel constructions becomes one of the hot points, right because in a way it's where bob's description of the legal history and value of the fisc court doesn't translate perfectly into an adversarial setting on the other side where information has remain classified, is not end up for the defendants, or the existence of it does not end up before the defendant. i would add for the staffers in the room that the special amicus in the usa freedom act does not have access to privileged information, which would be

great if that got fixed before it got enacted. >> what is it -- what kind of privileged information you think the special advocate should have access to? >> this is the rule of construction in the amicus instruction. state secrets, executive privilege. >> i think it's clear that the amicus will have access to classified information. i do not think the amicus will is access to the internal opinions and "n" the executive branch. >> i don't think that the amicus should have access to that. information that is privileged, seems to be waiting for not yourself or anybody who is currently in office, but at some point it seems like there is wool to be pulled over their eyes. another question. >> ginger mccall of the electronic privacy center. i'm a frequent foia litigator, and i obtained documents that should the department of defense is developing not just speech to text, but also speaker recognition technology. i have two parts to my question. the first is, if the government doesn't believe it has the legal authority or the intent to use that kind of technology why spend taxpayer dollars on it. it seems it would pair quite well with what the nsa is

already doing. i do not think it is an accurate corollary to liken an informant to a government program like the nsa collection program. government program triggers certain fourth amendment protections that a private voluntary informant would not trigger, so that seems an inaccurate corollary. >> we disagree on that. on the first one, i am not saying the government is not using these techniques. i'm not acknowledges that these techniques exist. i'm just saying that they don't expand the authority of the government to do anything that it cannot legally do now. >> there are private sector people who are expanding the speak to text. the fact that the government develops technologies that are better developed by the private

sector should not be a prize to anyone. the government will spend more and do it more slowly. but speech to text capability is not necessarily that is something that automatically pernicious if you are saying okay google or talking to siri you are using speech to tex technology. >> but when a private company does it, it is a bit for revenue. when a government doesn't come it is an expression of the will of the country. >> it depends. if it's speech to text technology so someone who is driving a humvee down the road can actually talk to the navigation system without taking their hands off the wheel and typing. that's a different reason for developing mass technology than using it to do mass searching.

that is an important question, where are these being used and underrun authorities, there are benign reasons to develop some of these technologies as well. >> i do actually want to clarify. because i have the documents on this. this is a technology that is specifically being designed to be used in telephone communications collection. it is being designed to be able to detect speech, then turn it into text and do keyword searches and recognize who the speaker is -- in -- specifically for surveillance scenarios. >> tell me what you think is wrong with that. >> not necessarily that anything is wrong with it, but looking for protections in place so there's not further privacy violations. you can see how this would be paired with telephone to communications selection capabilities the nsa already has. >> sure. if the nsa were to use that in ways that violate its

authorities, it would be a problem. if they use that in furtherance of their existing authorities and within those authorities, it is not a problem. the technology is not the problem. the legal authorities are. >> i agree with you. absolutely. technology is neutral. what we need are protections that are built around this technology and for that we need transparency. >> i think the second circuit opinion reveals to us the critical issue of who makes that determination. this program, the metadata collection program has been going on for many years. it was not until the leaks occurred that it ended up having standing to be challenged before a court of appeals. what is the alternative, if not transparency? frankly, an adversarial system that produces an independent decision on whether or not this is lawful. >> whether or not what is lawful? >> whether it is the policy decision to develop technology that converts speech to text. >> there is nothing lawful or unlawful about a technique that

converts speech to text. >> the implementation of it, then. >> what is lawful or unlawful is what communication the nsa collect, and under what authority. and that's what we have been much more transparent about than in the past. that's what is fully known to the intelligence committees who are the authorized congressional overseers. but how it is that nsa is able to implement its lawful authorities can frequently be the kind of thing that does in fact cause a -- cause damage when it gets out there. as i said, i'm not specifically acknowledging or denying the existence of any particular capability. i'm only saying that the focus needs to be on what are are the authorities that nsa is doing, and what are the protections around the execution of those authorities? >> and that's certainly understood but -- >> tell the fisa court that we're doing what?

>> tell the fisa court that you were speeching ingto text on voice intercepts by 702 or what would have you. >> so, true. b, the court order specifically dictate what we can do and what we can't do in conducting collection under 702. you have seen those orders. you know what they say. we can do on -- let me finish. >> not in processing. >> the orders also provide what kinds of processing you can do on them. we do what the orders authorize. if the orders authorize it we're allowed to do it if they don't, we're not. it doesn't matter whether we would use speech-to-text recognition tools or whether we use 800 monkeys sitting at typewriters. >> there's nothing in those orders about using speech-to-text processing, so therefore, you're saying you don't use it on 702 or presently? >> the orders speak for themselves. i'm not saying anything about

speech-to-text processing. >> i would point out one more thing as we get to the next question which is that this also highlights a distinction that exists when you have to -- the circuit opinion that we had. the question of whether or not an algorithm going through texted information indicates a real search. i think that's the question. and hypothetically speaking, i would be interested, and maybe you may know about this as well. don't mean to be picking on bob here. if searching against it, against the data base is a search under the second circuit but is not considered a search under fisk, what is a speech to text? does that -- is that a search? does that count as a search? >> so i think the question on that is the particular communication that you are looking at, that you want to convert from speech to text. the question is, how did you pick that out of your haystack.

so that's the question that i think bob is trying to get at. like what is that, is it that we're saying, look, you have bulk collection of something and we're doing it on everything that's a different question. like if you're processing the entire haystack versus processing selected communications, that's the question about the technology. and then you need to know what were the criteria for that selection. we used to have this debate all the time. as far as finding a need in a haystack, people felt like you weren't looking at the whole haystack, you needed a lower level of scrutiny about the formation of that haystack. but it wasn't like you were going back and saying, okay what's the level of scrutiny on the selection tool. now this is in the early days. and things have evolved legally since then. i think there's a real question, the second circuit is pointing out, about at what level is there a search. at what level is there an

effect, right. and i think -- is someone affected. i think that's the question that as a country it's not clear where people come down in terms of the communications that they're putting out into the world. and this is a question about, you know, third party and the rest of that. i think that different people might feel differently about it. but it's not until recently that we've had a national conversation about that. >> shouldn't the arbiter be something that looks like the court of appeals for the second circuit rather than the fisa court? >> in what -- i think it really depends on the context in which you're asking a question, right. like if you were talking about -- if you're talking about the 702 program then no. it's -- because you have this challenge of particularity and within 702 you have an overstructure. in a title 18 context, probably yes.

but i don't know that -- like in the 12333 context, i don't know that you would ever get to judicial oversight. i think it's a very different question depending on what communications you're talking about and what's affected. >> next -- excellent last question. >> hi. this question is actually for mika or fritz. i'm wondering if you can discuss -- i know there's discussion of this in fritz's book. but the oversight committee to get information declassified. because it often seems as if while congress' tools for doing that are quite limited congress often doesn't try. so what are the obstacles to trying to get information declassified, at least to request it in congress? >> so on the intelligence committee, i would say the desire for declassification is lower because you're dealing with everything inside a classified space, so you're able

to have those conversations in a protected environment. if t-- it's only externally that it's a challenge. i think for a long time before we got through a period of public debate starting with the 702 debate it was very difficult to get the community to break down exactly what was classified and at what level so you could actually have the public debate. the so-called classification guides that would help members be able to have a conversation where parts of it were classified and parts of it were unclassified, and to be able to describe that well. i think members of congress are hesitant for a variety of reasons to take unilateral action which they could do under the speech and debate clause or votes of the committee to just declassify things absent executive branch input. in part because they are so dependent on the executive branch for continued access to the classified information, and that really is, i think, the

nuclear option in terms of putting information out there. so i think they are cognizant of the ways in which it could become golf they're revealing classified information in a way that could undermine security. i think because they also take their job to secure the nation seriously, they are hesitant to do things that they feel like might undermine the country. >> i would say congress has the power to declassify but they have to go through a process. it's not easy. some individual senator getting up and reading a classified document and saying i'm protected under speech and debate i think is not a desirable way to go. but the committee can -- can declassify, they don't have to wait for the president or wait for the cia. and i think they are a little too subservient. but if you don't have a unified

position you're not going to have the power to do it. and we -- we did it sometimes. we did reveal some things that the executive branch didn't want us to. and we were right the shamrock program was one example. we were right to reveal those things, but we had a sort of unity. and right now i think you're going to be very difficult, like in the torture report, to go beyond where they were -- you would not get, i think a congressional vote or a leader's vote to allow it too the committee or -- there's two or three ways it can be done. they have the power, they should be a little more willing to at least consider doing it. but you can't do it unless you have a very solid backing for the decision. >> this also goes to a question

that affects the quality of congressional oversight. that is the commitment of the leadership of the congressional committees involved. and that really varies from member to member. i have worked for members who have pushed very aggressively for agricultures to declassify information. personally getting involved in that conversation and pushing through the bureaucratic process that declassification might normally take. and then there are other members who would prefer that nothing be declassified at all, and the level of the members' commitment to having it in public as opposed to behind closed doors. the members' compliment to aggressive, skeptical -- commitment to aggressivegent skeptical oversight as opposed to a friendly relationship really will change the ways, the quality that committees interact with agencies. and they set up expectations when you have a long period of time of one kind of oversight or

another. they get used to that. when change comes it's sort of -- it's a tough adjustment. >> we are over time. thank you very much to all the panelists. this was an extremely -- was extremely infwoermormative to me. i hope as well to others. and thanks to bob, it's important to have intelligence from the insight committee to be represented here. thank you again. thank you all for being here. [ applause ] >> all this week on c-span3, american history tv in prime time. on april 21st 1865, six days after president lincoln's death, his funeral train departed washington, d.c., on a

1,654-mile journey to lincoln's hometown of springfield, illinois. the train arrived on may 3rd. and president lincoln's funeral took place at oak ridge cemetery the next day. tonight, a look back at that journey from a recent event honoring the 150th anniversary of abraham lincoln's assassination. that's at 8:00 p.m. eastern here on c-span3. and on c-span scientists and journalists examine the phenomenon known as science denialism. it includes the religious and corporate roots of those beliefs and to look at issues such as climate change, space exploration, and vaccines. here's a preview. >> i was one of the regular hosts for the universe on the history channel. but they would present a show that i was doing about asteroids or, you know possible life on mars from a scientific perspective. and then they would have ancient aliens on right after it. [ laughter ] >> seriously. right after it. and they would be presenting these things as equivalent. and this was enough to make me stop actually working with the

history channel. you know, the strange thing was -- i think this gets at a lot of what's going on with this denialism, somebody called me at nasa and said, oh, may god, is it true the world is going to end next week? and i'd been dealing with a lot of this. i try to be very polite. i sort of had enough and i said, think about this, do you think i would be here in my office answering the phone if i thought the world was ending in a week? and i said you know start getting worried when all of the scientist buy up expensive wine and max out their credit cards and all go to some tropical island because then you know that something really bad is going to happen. but the -- this idea that i am not a person, that i don't have feelings and emotions and a family and a reason to be alive you know, that i wouldn't react emotionally if i knew the world was coming to an end. what an odd disconnect. you know somebody wants to separate the fact of being a scientist from the fact that you are a human being.

>> and you can watch that entire event, part of the annual world affairs conference at the university of colorado in boulder, tonight starting at 9:00 eastern. here are some of our featured programs for this weekend on the c-span networks. on c-span, saturday starting at noon politicians, white house officials, and business leaders offer advice and encouragement to the class of 2015. speakers include former president george w. bush and melody hobson, chair of dreamworks animation. and at 9:15 p.m., former staff members reflect on the presidency of george h.w. bush. and sunday at noon, more commencement speeches from across the country with former secretaries of state condoleezza rice and madeleine albright and philadelphia mayor michael nutter. on c-span2, book tv events from new york city with book expo america beginning at 10:00, and live call-in segments throughout

the day. sunday evening at 9:00, on "afterwards," looking at the case hollingsworth v. peri which considered the constitutionality of proposition 8 the through rescinded the right of same-sex couples to marry in california. and on american history tv on c-span3, saturday at 7:00 p.m. eastern, first lady who's have had the most impact on the executive mansion. sunday afternoon just before 2:00 the life and death of our 20th president, james garfield, who served almost two decades as a congressman from ohio and was assassinated 200 days into his term as president. get our complete schedule at c-span.org. the senate veterans affairs committee recently held a hearing looking into veterans health care and benefits including the implementation and future of the veterans choice program. notable speakers include deputy veterans affairs secretary sloan

gibson executives from triwest health care alliance, and healthnet federal services. along with the leaders from veterans service organizations. this is about two hours, 15 minutes. >> the state senate it order. we have a vote on the floor which should be over in the next ten minutes. ranking member blumenthal, i passed him as i was leaving. he supposedly is on the way. i'll talk a little and tell you what i want you to know about the opening statement if he's not here. i'm going to start with the freshman lobe is gibson. if he is here -- sloan gibson. if he is here, we'll go to the ranking s. that fair? make the note that his staff said that was okay. [ laughter ] >> i hate to get people in trouble. but i want to take a little extra time on this anyway. this is a very important hearing

for the v.a. it's a very important hearing for us. last year culminating with august's passage of the veterans choice bill in the united states house and senate the v.a. -- every morning i got up it was bad news. veterans dying in phoenix, problems in raleigh, problems in denver problems in orlando. and answers that were incomplete at best for understandable reasons because an awful lot of the personnel at the v.a. were new. i'm the first person to recognized that robert mcdonald had just gotten there. i'm the first to recognize that the secretary had just left about a year earlier. and secretary shinseki was gone, as well, so there was a transition. in my way of thinking, there is no excuse for the plethora of problems the v.a. was having and the transition should have been much better but wasn't. the v.a. demonstrated to me in the last hearing we had on veterans choice that they finally were listening. all i was hearing on the 40-mile rule in terms of where the crow flies or how far the car drives was nothing but stonewalls until

finally sloan walked into that hearing, reached in his pocket and pulled out a new rule on the 40-mile rule to make the number of miles driven be the governing factor, which i think everybody on this committee agreed with and appreciated. i believe we're satisfactory toward working toward the care you need definition being defined statutorily to make that change which won't happen today but will happen in the near reach future. i want to commend sloan and secretary mcdonald and the others for the work they've done on that. to the vsos in the room, i know some of them don't like veterans choice bill because they fear it will be a replacement for the veterans' administration. you're not going to replace the veterans' administration. it will always be there. but you can empower the veterans' administration, you can empower the veteran by seeing to it they have access to world-class care in a close proximity to where they live and an affordable amount and manageable amount, whether it's from the private sector or whether it's from the government. if anything -- and this is going

to sound harsh -- it should sound harsh -- v.a. has demonstrated it can build a hospital without running over 100%, 200%, 300% over 400%. every time we can private sector help given to veterans without having to build a hospital to put people in, it's saving the v.a. money saving the united states money, and it's giving the veterans far better services. what we need is a partnership between the private sector and the veterans' administration to deliver the ultimate goal which is to see to it that the veterans get world-class health care and they get it in a timely way. that is my only goal. however we do that, the most important way is to get it done. i think veterans choice is the way to do it. we've had some bumps in the first, i think it's -- november 1st i think is when veterans choice of rolled out. we've had bumps. i've met with private contractors and i, by the way, appreciate those meetings and their confidence in the job they can do. i appreciate the fact that v.a. is now cooperating, i think, in ways that it might not have been cooperating before. to see to it the two are working

seamlessly. if they can't work seamlessly, it will never work. the private sector has to understand contracts are not just subject to contracts by the veteran but their willingness to work cooperatively with the v.a. the v.a. needs to understand that the veterans health care drives the decision and nothing else. there are some in v.a. health care who don't like the non-v.a. health care provisions anyway. i understand that. but they're going to have to get used to because we're going to make this work. we're not going to put a square peg in a round hole. today's hearing is important to hear a report from the v.a. and contractors and later from the vsos. understanding that as we talk today, remember the first person we're here to serve is our veteran. they risk their lives for each and every one of us to be here. we can expect no less of ourselves, to see to it they get the best world-class health care as accessible and affordable as possible for our country and the taxpayer. with that said, i'll turn to the ranking member, senator blumenthal. >> thank you, mr. chairman. and thank you for having this hearing. thank you to each of you for

being here today. we went through a terrible tragedy and debacle not long ago that prompted the veterans access choice and accountability act which sautdought to relieve problems and underlying issues including deceit and fraud that caused delays and misreporting within the v.a. system. the discussion today is centered on the remaining flaws and failings in the v.a. health care program, particularly the veterans choice program. and as much as this program was established to deal with the immediate crisis of access to care in the short term with investment of $10 billion to provide direct care services in the community and $5 billion to

provide the choice program there is still a lot to be done. the program was just a down payment, just a first step. and i believe that if has to be improved even further. there remains, for example, under utilization of the choice program. the reasons for it have yet to be determined or discovered. the underutilization may well be the result of a failure to sufficiently publicize or make aware veterans. it may be the result of other more fundamental issues within the program and i share the chairman's view that changing the 40-mile rule was certainly a welcome step. the most important fact that

bring us here today, and we can't lose sight of it, is that we still have not solved the crisis that led to this program. veterans still wait too long for appointment. health care delayed, in effect, is health care denied for veterans who suffer from health care conditions that require immediate treatment. the v.a.'s most recent data release of may 1st indicates that wait list numbers have increased significantly since the same time last month. in its april 2nd release, 3 77,300 veterans had appointments scheduled in more than 30 days from the preferred date. as of the may release, that number had jumped approximately 56,000 to nearly 434,000. anybody who believes that this crisis has been solved is living in an alternate universe.

it's not the universe that our veterans inhabit. these delays have real-life consequences. they cannot be tolerated. too many veterans are still waiting too long for appointments. i'm glad that the v.a. is finally going out to the facilities with long wait times trying to determine why exactly they are not utilizing non-v.a. care options. and i noticed that a lot of the testimony today talk about further changes to the geographic criteria. every time there's an additional change to the 40-mile criteria, more of the $10 billion allocated to the choice program will be devoted to paying for access. this money is due to our veterans because better health care is due to them. i'll close on this note -- we still do not have accountability for the delays.

the inspector general still has not completed his work. we still have no reports on action, and i mean effective disciplinary action for the delays that were intolerable and still are unacceptable. skablt absolutely necessary. i believe the inspector general needs more resources to effectively implement accountability. i will continue to press for the reports and for action by the inspector general that will send a message to the health care apparatus and professionals in the v.a. that we really mean what we say when accountability is our watch word. thank you, mr. chairman.

>> thank you, senator blumenthal. our first panel will be made up of the following individuals. first of all, the honorable sloan gibson. we've become new best friends the last four or five month. i want to thank him publicly in this introduction for his willingness to take on tough situations. he inherited some tough situations. and i appreciate the fact that he's approaching them in a positive way. we've got a few more tough 1-800- coming up-- tough ones coming up. i hope he'll maintain that attitude. i appreciate the cooperation. to reiterate for those present including the press, secretaries mcdonald and secretary -- under secretary gibson invited the ranking and myself and the house ranking, the house chairman, to the v.a. for what they call a standup which we did in february. we've been invited to come back in june. and i believe the room is for the entire committee if they want to come. i think i heard that this morning. and as many members as want to go, i want to make sure they're invited to see the way in which the v.a. is benchmarking itself against itself so to speak. to try and find ways to find

better twice do things and flush out the problems in advance get them solved earlier. we're looking forward to doing that. we've got big problems to solve in the next few months with a testimony or a test, one way or the other, to ourless willing not toness to work together. i appreciate you being here very much. our private provider mr. mcintyre, i enjoyed our meeting this week. i appreciate the insights you gave me. and miss hoffmeyer, we appreciate you being here. we look forward to hearing first from sloan gibson. >> thank you mr. chairman. chairman izax and ranking member blumenthal, members of the committee, we're committed to making the choice program work and to providing veterans timely and geographically accessible quality care using care in the community whenever necessary. i'll talk shortly about what we're doing and the help that we need from congress to make all that happen. first i want to talk briefly

about access to care. moist mornings at most mornings at 9:00 a.m. for the past year, senior members gather to focus on improving veterans' access to care. we've concentrated on key drivers of access including increasing medical center staffing by 11,000. adding space boosting care during extended hours and weekends by 10%, and increasing staff productivity. the result 2.5 million more completed appointment inside v.a. this year than last. relative value units, a common measure of care used to measure care delivered across the industry are also up %. another focus area for us in improving access has been increasing the use of care in the community. in 2014 v.a. issued 2.1 million tlagds authorizations for care in the community which resulted in more than 16 million appointments

completed. year to date in 2015 authorizes are up 44% -- authorizations are up 44%, which will result in millions of additional appointment for community care. veterans are responding to this improved access. more are enrolling for care at v.a. among those enrolled, more -- r using v.a. for care, and those using v.a. are increasing their reliance on v.a. care. this is especially the case where we've been investing most heavily due to long wait times. in phoenix where we've added hundreds of additional staff, we've increased completed appointments 20% this year. i should also note that we have increased care in the community 127% in phoenix over the last year, largely due to the extraordinary effort of triwest in that particular community. wait times aren't down. wait times aren't down in

phoenix because of the surge in additional veterans coming to v.a. for care, and the veterans that are there asking for more care from v.a. in las vegas we've got a 17% increase in veterans receiving care since we opened the new medical center there less than two years ago. in denver we've opened outpatient clinics and added more than 500 additional staff. veterans are using v.a. for care there, up 9%. in fayetteville north carolina, where wait times continue to be a problem, we've increased appointments 13%, relative value units of 19% and veterans using v.a. for care are up 10%. in all of these locations, we've had dramatic increases in care in the community. as secretary mcdonald has testified during budget hearings, the primary reason for increasing demand for an aging veteran population increases in the number of medical conditions veterans claim and a rise in the

degree of disability and as we can see here improving access to care. as i mentioned at the outset, community care is critical for improving access. we use it and have for years in programs other than choice. in fiscal year '13 we spend approximately $7.9 billion on community care other than choice. in 2014, that rose to $8.5 billion. and we estimate that at the current rate of growth v.a. will spend $9.9 billion including choice a 25% increase in care in the community in just two years. at the same time, we've had a large increase in care in the community, choice hasn't worked as intended. here are some things we're doing to fix it -- on april 24th we changed the measure from straight line to driving distance using the fastest route. this roughly doubles the number of veterans eligible for the 40-mile program under choice.

excuse me. there is much more to do. a follow-on mailing to all eligible veterans is about to go out we've just launched a major change in internal processes to make choice the default option for care in the community. additional staff training and communication, extensive provider communications, improvement to the website and ramped up social networking, new mechanisms to gather timely feedback directly from veterans as well as frontline staff. these are all already in place or about to launch. in the longer term, we must rationalize community care into a single channel. the different programs with different rules and reimbursement rates, methods of payment, and funding routes are too complicated. they are too complicated for veterans, for providers, and for v.a. employees who coordinate care. i'm confident we will need your help on that. next let me touch on the other

40-mile issue. we've completed in-depth analysis using patient-level data to estimate the cost of a legislative change to provide choice to all veterans more than 40 miles from where they can get the care they need. we've shared that analysis with some members of the committee, staff, and with the cbo. it confirms the extraordinary cost that had been estimated previously. we've also briefed the staff on a broad range of other options and believe there are one or more options worthy of discussion and careful consideration. while we are working together on an intermediate term solution, we're requesting congress grant v.a. greater flexibility to expand the hardship criteria and choice beyond just geographic barriers. this authority would allow us to mitigate the distance and many other hardships for veterans. we also request greater flexibility around some requirement that preclude us from using choice for services

such as obstetrics, dentistry, and long-term care. as described above we accelerated access to care in the community this year, anticipating that a substantial portion would be funded through choice. for various reasons most touched on previously, we will treatment. you are all familiar with the

mirage louse impact of -- miraculous impact of this new generation of drugs. veterans who have been hep-c positive for years have a clear within reach with minimal side effects. because of the newness of these drugs, there was no funding provided in our 2015 budget request or appropriation. we moved $688 million from care in the community, anticipating the shift in cost to choice to fund treatment for veterans with these new drugs. it was the right thing to do, but it wasn't enough. we're requesting flexibility to use a limited amount of choice program dollars to make this cure available to veterans between now and the end of the fiscal year. so we're improving access to care. not notwithstanding the wait times you see. that means we've still got work to do on wait times. we are improving access to care. we're committed to making choice work and have specific actions

underway to do just that. we need some help especially additional flexibility to allow us to meet the health care needs of our veterans. we look forward to your questions. >> mr. chairman, ranking blumenthal and members of the distinguished committee, i'm grateful for the opportunity to hear -- appear before you this afternoon on behalf of our companies, employees, and its nonprofit owners to discuss triwest health care alliance's work in which we're privileged to do in support of the department of veterans affairs. i would like to focus my oral testimony to three topics. the realities of this program's implementation, the process of identifying and resolving gaps and those which remain to be resolved and what i believe to be the art of the possible going forward. mr. chairman before the veterans choice program, there was pc-3. as you know and as secretary gibson has said purchasing care

in the community from community providers has been a long practice of the v.a. in fact, in september of 2013 after two years of planning v.a. sought to change that with the awarding of the patient-centered community care contracts to w.e. and health did the net thenet. -- healthnet. it was designed to have an integrated system in the community to undergird the v.a. facilities across the 28 states in the pacific that we're privileged to serve and make sure at the end of the day that we weren't there to replace the v.a., that we were there to supplement it. in fact, it worked as intended. when the furnace lit off in our hometown of phoenix, arizona 6,300 providers under contract under pc-3 leaned forward at the site of the v.a. medical center to assist in eliminating the backlog. and by august, 14,000 veterans had moved through that process. around the same time, we got a

modification to add primary care to those contracts. and within 90 days we stood up a network of primary care providers. we now have over 100,000 providers across 28 states and the pacific under contract along with 4,500 facilities and we're not finished. the reason why we're not finished is that we need to make sure the networks are tailored to match the demand that exists in a particular market that's not able to be met by the v.a. facilities itself. the fact is that was a complicated program to set up. it was done under very short order. but it was training, if you will, for what was to come next. on november 5th after 30 days of work we were to stand up in support of v.a., the choice program. we had to partner with v.a. to receive a list of all eligible veterans. we had to design and produce a card and put it out with a personalized letter from the secretary. and we had to stand up a contact

snor center -- center to handle all of the calls coming in n. after hiring and training of 850 people. no one went into three-hour waits. the phones were answered, but the work had only begun. and we'd been on a pathway since to try and mature the operations. the secretary talked about the 40-mile issue. there's additional refinements that may well be needed and desired in that area. and if so, we stand prepared to support what those might look like. there's some other changes that that may well be needed to the program as we go forward. secondly, we need to aggressively identify and resolve our gaps and fix our operational performance. we're in the process of doing that together. we're modernizing our i.t. systems, rolling out after memorial day, after a 24/7 build a new portal system that will serve all of the facilities and our own staff as we seek to move the veteran information back and

forth between the two facilities as care is rendered downtown. and we're in the process of tailoring networks to match the demand that exists in each market across our area. the choice program is up, it's operational, and there's refinement still needed. i believe that because of the collaborative work that's been underway between all of us that are engaged in this that we are refining the pieces that need to be refined we're identifying the policy gaps that need to work, and those things as the secretary said are getting attended to. i think there are a couple of policy issues, though, that remain the jurisdiction of this particular committee. one is i would encourage a relook at the 60-day authorization limitation that's been applied. secondly, i would respectively submit that there needs to be harmonization between the two programs and between all of the

facets of how the v.a. buys its care currently and engagement with us to make it work right. at the end of the day, i believe the art of the possible which you sought is truly within our grasp. i'd like to point to dallas, texas, for a second if you'll permit me to do so. under the engaged leadership of the division 17 director, a couple weeks ago we sat with the v.a. medical center director and entire staff there including behavioral health staff and looked at the full demand that exists for veterans in that market. we then took out and looked at what's the network that's constructed to stand at its side which is the base on which choice rides. so in other words, if there's not a network provider, you can set up an engagement with an individual provider to deliver services under choice. we then designed a network map that we're now in the process of

constructing together. and over the next 90 days from behavioral health to primary care to specialty care, we will rack and stack the network to meet the demands that otherwise can't be met by the v.a. medical center in dallas. that is being repeated across our entire 28-state area and the pacific as we seek to do our part to mature the operations of choice. it's a privilege to serve in support of those that serve this country. it's an honor to serve the veterans from the states that are represented by half of the members of this committee. and mr. chairman i look forward to taking questions after my colleague, donna hoffmeyer finish is finished with her remarks. >> thank you. chairman, ranking blumenthal, and members of the committee, i appreciate the opportunity to testify on healthnet's administration of the veterans choice program. healthnet is proud to be one of

the longest serving health care administrators of government programs for the military and veterans' communities. we are dedicated to ensuring our nation's veterans have prompt access to needed health care services and believe there is great potential for the choice program to help v.a. deliver timely coordinated, and convenient care to veterans. in september, 2013, healthnet was awarded a contract for three of the six pc-3 region. we implemented pc-3 across our regions in a six-month implementation schedule. completing implementation at the end of april -- at the beginning, excuse me, of april 2014. then in october after congress passed and the president signed the insurance access choice and accountability act of 2014, v.a. amended our pc-3 contract to include components of the choice program. with less than a month to implement choice as dave just mentioned, we literally hit the

decks running i'm a navy veteran, to use a navy phrase, and we haven't slowed down sints. to meet the required start date of november 5th, we worked closely with the v.a. and triwest to implement an aggressive implementation schedule and timelines. the ambitious schedule required us to hire and train quickly and to reconfigure systems for the new program. despite this very aggressive implementation schedule onofre 5th, veterans started to receive their choice cards and they were able to call in to the toll-free choice number to speak directly with a customer service representative about their questions on the choice program or to request an appointment for services. having said that, there certainly have been challenges that have resulted in veteran frustration, as well as frustration on the part of v.a. and, to be honest, even our own staff, including call center and appointing staff. with such an aggressive implementation schedule, there was little time to finalize

process flows and make system changes. we literally had less than a week from the date we signed a contracted modification with veterans to the actual go-live date. while the collaboration with v.a. since the start of the choice program has been good there still is considerable work that needs to be done to reach a state of stability where the program is operating smoothly, and the veteran experience is consistent and gratifying. we appreciate the opportunity to offer our thoughts on the future of the choice program. the choice program is a new program that was implemented in record time. as a result, there are a number of policy and process decisions and issues that are either unresolved or undocumented. if choice is to succeed these items must be addressed quickly. as i mentioned earlier, we've been working closely with v.a. to address these issues. many of the items simply could not have been anticipated before the start of the choice program. others however should have been addressed before the program started but the

implementation timeline did not provide adequate time to do so. the identification of policy and operational issues and concerns has been occurring very quickly. as a result, we've struggled to keep up with developments and to adequately train our staff with the most up-to-date and accurate information. this situation is not ideal. based on these dynamics, we have one overall recommendation for moving choice forward. we recommend v.a. develop a comprehensive, coordinated operational strategy for choice that clearly defines the program requirements, the process flows, and rules of engagement. this strategy should provide a clear roadmap for all of us to follow. one that's communicated to all the stakeholders. v.a. leadership, visn medical center leadership and staff both contractors, congress and most importantly the veterans. while the strategy needs to identify key initiatives and

reasonable timelines for implementing those initiatives, it also needs to contain the flexibility to address issues as they arise, and make necessary course corrections. the strategy must include resolution of outstanding policy and process issues, development of policy and operational guides that are mandated across the program, comprehensive training of v.a. and contractor state of using consistent process flows, operational guides and scripting. and a clear and responsive process for resolving legitimate issues and challenges. in closing, i would like to thank the committee for its leadership and ensuring our nation's veterans have prompt access to needed health care services. we believe there's great potential for the choice program to help v.a. deliver appropriate, coordinated, and convenient care to veterans. we are committed to collaborating with v.a. to ensure the choice program succeeds. working together with the leadership of this committee, we are confident that choice will deliver on our obligation to

this country's veterans. thank you. i look forward to your questions. >> well thank you all very much. i had all these preplanned questions, and listening to your testimony, i've canceled all of them. i'm going ask the ones you've raised in your testimony starting with you, mr. mcintyre. it was quick, so i want to make sure i got it all. you were encouraging us to look at the 68 authorization of what? >> i would look at the limitation on 60 days for authorized care under choice. it puts people who have cancer in a position where we need to move them back and forth between the v.a. medical center. it takes a person who might be with us under choice because of a pregnancy and does the same. and i don't think that was intended. i think it was intentional that there were parameters drafted around it. but the notion that certain type of care would have to move back and forth between the v.a. medical center and downtown is not -- neither efficient or effective in the delivery of care. >> all right. i don't want to spend too much time this, but this is very

important, i think, from listening to your testimony and watching everybody's head bob. tell me -- you want to expand the 60-day authorization to a longer period of time? >> i think i would leave it to the clinicians in the department of -- >> no, don't get off with that -- >> okay, i won't get off with. that i got it, sir. what i would do is to evaluate which types of care are there needed authorizations that would last more than 60 days. and -- >> in other words, i want to make sure i -- what you're saying is the 60-day limitation causes things like some cancer treatments, a pregnancy, for example, and things like that for that patient to have to go back and forth between private and v.a. health care because of the 60-day administration? >> the process requires us to go back and forth in support of that veteran when it's probably unnecessary is what i would submit. >> like medicare's two-night rule in the hospital. >> yes, sir. >> it's one of those unintended consequences. >> yes, sir. >> is there any reason we can't fix that? >> we're going to work on it and we'll come back to you with

a proposal. >> it would seem like -- listening, it seems it would be more cost effective to the v.a. to do it, fix it rather than go back and forth. there's got to be money involved every time you're doing that. is that right? >> yes, sir. but there is a fee that's paid for each authorization. but the bigger concern is the potential disruption to the veteran. >> efficiency is always less expensive, and that's more efficient, it seems to me. >> yes. >> i appreciate you raising that in your testimony. >> you're welcome, sir. >> ms. hoffmeier, do you have any credit cards? i don't want them. i want to know if you've got them -- >> you have the right to remain silent. >> i'm trying to think which ones do i -- yes, sir, i do. >> do you ever get the annual mailing of the required government notification of security? about four pages long, the print's so small you can't read it -- >> i think that goes right in the recycle bin mr. chairman. >> in your testimony i heard from you a clear statement that we needed to simplify and coordinate the instructions

rules, and processes under which veteran choice works. is that right? >> it is, mr. chairman. >> go ahead -- >> no i just think, you know, it's -- as i said in my -- both my written statement and opening remark everything has been moving very, very quickly. and as a result, there are a number of things that maybe haven't been addressed as completely, as ideally. we would all like to see. and it makes it really difficult. i mean it's hard for us -- we talk about this at our level, to keep up with everything. you're talking about call center representatives and appointing clerks that are trying to keep one all the developments. somehow we have to find a way to make it easy for -- not us to understand but the people that are working closely with veterans to make this program work. they need to understand it. >> that goes a little further than just to y'all. i think the veteran needs to have it simpler to understand, too. all the stuff diaz a

businessman, we -- stuff i did as a businessman, sweerveed people with college and master's degrees, but wrote everything at an eighth grade level, what the newspapers do, as well. that's the way you can communicate to the majority of the american people. some of these things i -- i haven't read medical instructions, but things i read on drug notices when i get my drugs -- regular drugs, the real ones. the prescription. you read all these things you're not supposed to do or supposed to watch out for. it's so long and cumbersome, i can't understand it. i -- i don't do the right thing sometimes. i think that could be our veterans, as well, and instructions they're getting. sloan, i would hope what all of you would do is work together to find some ways to simplify the communication mechanism to the beneficiary which is the veteran, and the provider which is the local provider in veterans choice. the simpler it is -- most of this -- i know it's complicated. i'm not trying to oversimplify it. sometime out of fear or out of desire to make sure we covered everything, we cover so much that we don't accomplish the goals. i appreciate both of you raising

that testimony. my last question is going to be of sloan until we come back to the second round if we do. you kept talking about you wanted us to give you more flexibility. >> yes, sir. >> put some meat on that bone. flexibility on what? >> well, i'd say at the top of the list, it's flexibility around a determination of hardship for veteran to be able to have access to choice care. and so the way the law is written today, it's restricted to geographic barriers, i think is the language that's in the bill. we want to open that aperture which would give more flexibility to be able to extend care under choice to veterans. >> open that aperture to be a type of illness? >> it could be a type of illness, it could be distance. there could be an instance where a veteran lives within 40 miles of a v.a. facility that doesn't deliver the care. we want to be able to refer the care into the community. >> in other words -- >> working on the intermediate -- >> time is up, so i'll interrupt

you. i apologize. you want the ability to exercise judgment in terms of hardship -- >> yes, sir. >> you want the chance to exercise judgment in terms of the 60-day authorization, is that right? >> yes, sir. >> this ought to be ways that we can accomplish both of those things. >> yes, sir. >> i think in raiseing -- you're excited about that answer or needs to leave, one or the other i don't know. whatever the case is you can help us write that? i think those are both determinations we ought to be able to do. and i recognize in those -- your flexibility on the 60-day authorization sounds to me more cost effective and less expensive. yours probably raises some cost questions like were raised any time you do things like that. in the end, again, we've got to remember the person we want to serve is the veteran. >> yes, sir. >> yes. and because of misapplied hardships, not the right thing to do. ranking member blumenthal? >> thanks mr. chairman. just at the outset, let me say that you will be asked shortly by senator sanders, i believe,

about the letter that he's written to secretary mcdonald urging that he use his authority as secretary of veterans affairs to break patents on hepatitis c medications for the treatment of veterans suffering from that disease. i would strongly urge that you consider using your authority on -- under 28 united states code section 1498 to take that action that will make this medication more widely available to veterans who need and deserve -- especially since the v.a. was involved through one of its employees, and the research that undertook this initiative and successfully reached this result. i want to focus for a moment on the v.a.'s proposal to fund construction costs at the denver facility, specifically the $1 billion cost overruns out of the

choice program's provisions for long-deferred maintenance and facility capacity issues in the v.a. system. these funds were very specifically designated and intended by congress to improve veterans' health care. veterans in my state who are aware of this proposal are absolutely outraged that their health care specifically the primary care upgrade at the westhaven facility would be indefinitely referred because of $1 billion cost overruns in aurora colorado. i suspect the same reaction will be felt equally deeply by veterans at the more than 220 other facilities whose health care will be compromised as a

result of the proposed redesignation of these funds. i would like assurance from you, secretary gibson, since we're talking here about choice program fund and talking about not just a few dollars here or there but 1/5 of all the funds in that $1 billion pot, that you are considering alternatives to that action. >> senator, we've sent a letter earlier today to this committee the house committee and appropriations committee requesting the increase in the authorization to be able to complete that facility as well as requesting the use of $730 million of those $5 billion to be used to complete the denver facility. we have identified -- >> i want to interrupt you because -- and i apologize, for

me, that alternative is a non-starter. it's unacceptable. i've expressed that view to appropriate administration officials. i realize that you're dealing the hand you were dealt. i'm simply urging you to consider alternatives. there are alternatives in my view, responsible and available alternatives, that do not involve deferring health care improvements through construction and maintenance at those facilities across the country whether in connecticut or georgia or montana or louisiana or vermont and all the states represented on this committee as well as those who not. >> in years past i will tell you it's likely that if the v.a. had gone lookingt of money there's a pretty good chance that we could have found it. because of the work that we've

been doing the past year to accelerate access to care to make hepatitis c care available to veterans under the circumstances, we don'tn=p sé+have $700 million sitting on the

health care for other veterans around the country. what i say to you is not personal to you -- not personal to secretary mcdonald. we have talked at great length about this issue. we have visited that facility together along with the chairman. and i have seen that vast hulking shell of a campus that say mockery of government contracting. so we need to address this situation to complete the project, but it cannot be done in effect, at the sacrifice of other veterans. my time has expired. i apologize for interrupting you. and i thank the witnesses for being here today. >> i wouldn't ordinarily do this, but in light of the question that was raised and for the benefit of everybody at the committee just to know -- i don't want this to limit anything anybody says, but i think we all have an obligation

to ourselves to make out-of-the box suggestions about what we do with cost overruns at denver, particularly those who have seen it, but everybody at the committee. i've taken a couple of actions that i'll share with the committee, leading up to a meeting tomorrow where i've got the democrats and republican leaders coming together to say, okay, what are we going do with this. which i hope the v.a. people are back in their office saying what are we going do with this, too. i think there's nothing we can do. i've ordered gao to do a study of surplus property and that which would be liquidate-able to offset what might be borrowed from. it you're dealing with a situation where you've got until may 20th about as much time as we've got now. to get at least to july 15th. we have a way to do that. it's going to take an action of this committee. but we're getting us to july 15th only gets us time to determine how close to $700 million we need, first of all with the court and veterans' administration working together

to do that. i'm presenting tomorrow. if everybody on the committee would think outside the box, if it was your problem, if you were in sloan gibson's place or bob mcdonald's place and inherited a $ 00 million -- $700 million ftes aren't necessary to build that hospital in denver. it's like that movie the american president when the guy became president as a fill in for somebody. they got a yellow pads out and started working on solutions. we need to get out the yellow pad and start working on solutions. just saying we're going to

borrow it from the veterans health care benefit, i agree with mr. blumenthal, that's not the way to do t i apologize for injecting that. but -- >> i want to thank the chairman because he and i have worked together. i am not speaking for the chairman, obviously, but i have some alternative suggestions as well. i have no pride of authorship, i don't think anybody does, of meeting the needs of completing that facility but doing it without sacrificing these other projects and i'll have ideas and proposals tomorrow. >> my apologies to the members of the committee and now i turn to senator moran. >> thank you for your comments and conducting this hearing. welcome to the committee, secretary and others. i hope to answer a series of questions but the time on the clock will run quickly. i want to start with a story

that i've told before about a vietnam veteran named larry. he lives in florida and he's a vietnam veteran, a swift boat veteran. indicates while in florida he received excellent care from the va, moved to rural kansas, became my constituent, lives about 25 miles from the cboc and 20 miles from the hospital. i started this story or this story began in july 2014 when larry, this vietnam veteran, needed a cortisone shot. the va's instructions were to come to wichita. so a three-hour drive each way to get a cortisone shot. we raised this issue with secretary mcdonald at a hearing here on september the 9th. larry contacted it us and said i don't care how it comes, the choice act or any way that the va can provide this service.

we raised this topic with the secretary in september of last year. then, in -- shortly thereafter, the director took this issue to heart and at least solved the problem but unfortunately, temporarily. in december, larry was granted an appointment in hayes. the cboc that doesn't offer cortisone shots but he got it in september of last year. the doctor who treated him, who provided the colonoscopy wanted to follow up and va denied that and sent him back to wichita. they denied that request because he was not eligible for choice. it exists within 40 miles of his home. he's back to wichita, ultimately he needed to -- instead of a cortisone shot, a colonoscopy.

he is trapped in this system of no one telling him what he can do except that he doesn't qualify for choice, go to wichita. just last week he received a letter from va approving him for choice. he then calls tri-west and tri-west says you're not eligible. we don't have you on this list. but i got this letter. he indicates that he talked to four different operators at tri-west all who gave him a different answer than anyone else than the three other operators. he called the 866 number and was

told he wasn't eligible, got the four different answers and now we're back to the question, what happens to larry? and my point here is, why not it be larry's problem for what happens to larry but even if he's not eligible for choice or today because it's there and doesn't provide the colonoscopy or the cortisone shot, why is someone not saying, oh, we have these other authorities, this would work for you, as compared to leaving larry hanging and whether he's eligible and what he should do. how should we solve that problem? i don't think it's totally unique. i hope it is but i don't think larry is the only veteran that experiences this.

>> i doubt that the problem is unique. i bet that other veterans are having similar experiences. as i described in my opening statement, we are asking for additional flexibility which would give us more authority to be able to handle that situation inside choice. we actually handle many of those situations through other va care in the community routinely, which is why we have incurred so much expense but we find ourselves running out of resources in order to be able to sustain that. and so we wind up making suboptimal decisions. you've just given two great examples. chairman asked earlier about whether or not we would be using judgment around the nature of the procedure. the answer is yes. i would tell you, for someone who has a routine requirement like a cortisone shot, there's no reason to travel 150 miles to do that. that's something we ought to be getting done locally. for a veteran that has to get a colonoscopy, i'm not going to travel 100 miles. now, if a veteran needed a knee replacement, i might say, under the circumstances, make the trip. but the therapy that has to follow up after that, i don't want the veteran having to travel 150 miles each time he has to go to physical therapy.

the challenge that we have is 40 miles to get care, we keep running the numbers and the tab is horrendous. it's huge. what we've got to do is find a way to be able to manage this in such a way that we're doing the right thing for veterans and we're being the best stewards of the taxpayer dollar. >> we've had a number of discussions on this topic and today i would argue given the chance but i won't argue today about whether or not how the 40 miles should be interpreted. my point on this episode, one, is the uncertainty and the burden lying in the wrong place. it ought to lie with the va or tri-west, not the veteran. my second point is, if you have

these other authorities, whether or not larry qualifies for the choice act, ought not matter in the answer he gets. >> i agree completely. >> thank you. >> senator manchin has -- senator manchin has kindly yielded to me because i've got to run out the door. and to the gentleman that has to run out the door, senator sanders. >> thank you for your work that you've been doing and maintaining the bipartisan spirit of this committee. congratulations for all you're doing. >> thank you. >> i want to make two points. first of all, i want to thank sloan gibson and his boss bob mcdonald for the impressive work that you are doing. i understand how easy it is to

beat up on the va. running 151 medical centers, 900 cbocs. in a nation that has a dysfunctional health care system, the private sector also has one or two problems. i won't go into them but i think we should recognize when you talk to the major veterans organizations, the american legion, the vfw, you know what they say? you've heard this mr. chairman. when people walk into va, the quality of care is pretty good and i want to thank you for trying to improve that care. i will fight vigorously for those who want to try to privatize the va or dismember the va. i think our goal of trying to

use the program that we have developed so the people can get care in the community locally has a good mention but i will oppose to trying to privatize the va which is serving our veterans so very well. i want to get to another issue and senator blumenthal touched on it today. i wrote a letter to secretary mcdonald about an issue that has concerned me for a while and that is the high cost of the drug sovaldi, which is a very -- a miracle drug, so to speak, which is now treating the veterans of our country who have very high rates of hepatitis c. mr. chairman, to me, it is an outrage that you have a company whose profits have soared in the last few years. their revenues have doubled, i believe, in the last year. they've come up with the drug. they are charging the general public $1,000 a pill for that drug. they are charges, i believe -- i don't know if this is a great secret but i will tell it anyhow, something like $540, is that right? no comment. all right. but that's because the va negotiates drug prices. but you're running out of money. now, we have several hundred thousand veterans su