and, of course, that's what they wanted. so i went to the committee and i asked them if they would support me on this. and i did this is a number of times. never got an answer. went to meet with the fbi some months later in february of 2008. and found, to me surprise that it was not a meeting, it was an interrogation. and it became clear at that point that i was a target. and also became clear at that point that the committee had thrown me under the bus. and they repeatedly asked me for my sources and i repeatedly told them i will not tell you my sources. and i said i would not tell you ourselves, but this -- how can there be a more important issue than this? if i set that precedent in this all-important issue, the committees are worthless.

they will have no sources whatsoever. and jumping forward to the present time within r, anybody who goes to the intelligence xhss at this point as a whistleblower is out of their mind. they will do nothing. they will do absolutely nothing, at least on the post 9/11 nsa issues and they will not protect you. as they did not -- just to finish that after i was raided and all my items were seized guess what they seized? my kefl logs and all of my meeting books for the entire time that i had the nsa account. so potentially they had access to every person from the nsa ranks or otherwise that i had talked to. and the committee decided they also wanted to search my computer and all my papers. and so the nsa did a separate

key word search for them. all these searches illegal, by the way. and i have it in writing, they told nsa they could keep all my agenda books and telephone logs. there is -- >> and there is a separation of powers issue right? >> absolutely, yes. >> that congress is allowing the executive branch to gather information about their oversight activities. >> not only allowing, but facilitating, in my view. and i think the big issue was at that time, before 9/11 all they cared about was stopping leaks. on their public agenda, at least, that was almost the only thing you read about. so when the fbi comes to them and says, we think she's the leaker of the "new york times," they dropped me like a rock and they dropped all their sources and all the committee privileges the legislative privilege, as well.

>> and you know, again, we've seen this happen in a similar way with the senate intelligent report on the view, are there tools that congress has to better protect? in this case, at least to her credit senator dianne feinstein came out and made a very big deal of the fact that the cia was going after the staff members that way. but are there tools other than that sort of public appeal that congress has to protect itself staff and to protect its investigative prorogive? >> i think you are lost on these committees unless you have some champions among the members members who are willing to go to the mat with the executive branch unless there's a problem. and i think think of mr. mondale and others really with a struggle on an inquiry of some matters, threatening and

sometimes using subpoenas. i think we went to court on a couple of issues. so you have to be a fighter and, unfortunately, the cheerleader species is spreading rapidly. >> and they have to defend their fighters within the staff, as well. if they don't do that, where is the incentive -- >> that's what i really meant. and, you know, it becomes a -- accountability begins to revolve around a couple of key people. and that's all it takes. i remember on the house intelligence committee where the admiral turner came up to present the first covert action notification on the rhine act and we had a reporter there. a fellow in this case who had a mask over his face and was taking things down verbatim. admiral turner looked at that fellow and said mr. chairman, what is he doing here?

and he explained and the admiral said, i don't want him here. there is a breach of security. so mr. goal during his peaceful loving period in the intelligence committee said, okay, we'll get rid of him. and aspen a minority on the committee -- getting on the opposite side of him was probably not healthy for your career as a house committee member. but he said, mr. bowlen i'd like a roll call vote on this. i think it's important for us to have a verbatim record. and boles's face turned crimson. but any member has a right to call for a roll call vote. and the final tally was 7-6 among the members in the room. in favor of keeping the reporter there.

bolen was furious and remained so for many weeks. but the importance of that can't be understated because hence forth, the house intelligence committee had a verbatim record of the covert action briefing and all of the questions and answers that came after so that a year later when members begin to fade, we can go back to that record and have admiral turner come up here and say, well, is this what you've actually done? very important. and the word spread over to the senate intelligence committee and they demanded to have a reporter there, as well. one of the most important moments i think in the evolution of accountability. >> i wanted to say something in regard to the problems that sissy had with cia monitoring of their computers and seizing records that they had been given. i believe after the way i was treated and there was no reaction, but instead

complicity, i think that invited what happened to the sissy. you know and i also would say well diane -- i'm glad dianne feinstein feinstein did her report. this was not the first time they had done it. it was the second time as she said in her speech. the first time she tried to keep it all quiet and was unsuccessful getting them to back down. they had taken documents off the staffers' computer that they had been given and had sequesters. she went quietly to the white house counsel who got them to agree that they would never do do that again. and -- but there is no indication of documents being returned, in her speech at

least. and then it just happened again. and they had the nerve to go on the offensive, best defense is offense apparently, thinking apparently that she would back down. and she has shown some weaknesses since also, in trying to resolve it. in order to prevent the staff from being indicted is what she said. but instead what she should have done is go to the general counsel and say we'll back these people in court. >> how do we reform the system? do you have any thoughts on what the committee can do or what law can be passed? obviously passing the whistleblower protection law that applied to the intelligent community and giving them rights to enforce those rights. >> i have many ideas. i don't know -- i don't know

that they will be pal atble to a lot of people. but it's pretty clear that we are so far gone, nobody -- i think most people do not realize how far down the road towards the complete overturn of democracy that we are. i see this as population control, bottom line. that is the only way that it can be justified. it cannot be justified by terrorism. it isn't helping terrorism that much at least some of the domestic surveillance programs. there hasn't been a single tip yet from this program because they are drowning in data. if they were doing a targeted approach instead they would have been far more successful. why do they still say we have to have it all? we want to own the web? that was a big thing earlier. why? its because all this information contrary to what they said, all

this information is immediately filed under the identity as soon as it comes in. that was the competition to the system in a very good database and with all of your social circle and connections. people don't realize how much is involved. the so-called metadata is a tiny percentage of it. i am not saying that this is a very significant thing trying to take the metadata database away from the nsa and the cia and fbi and everybody else, which most people ignore. the program is so massive that there is no way come anywhere for any terrorist to go to hide. i know.

i've been trying to find a shred of privacy since 2006. stanek and i will attest to that as well. >> i want to put this out because this -- do think this phone metadata which is that the administration has basically focused everything on this as a red herring to keep you from looking at everything else they are doing. everything snowden has revealed. there was e-mail metadata which they also claim now that they have stopped, even though it was the most productive program. well, my contention is they haven't stopped it. they almost certainly moved it out of the courts purview because the requirements were to too expensive. that's what chris english said. it was too expensive to do it the way the court wanted them to do it and they moved it into

section -- into overseas collection of the databases held by the ifts and telcos overseas, which include a lot of domestic stuff. >> so part of the problem is we still don't know enough. these questions, why do these program happen what other programs are out there that we don't know about? you signed on to the report asking for a comprehensive investigation that -- >> oh, i do indeed. one of my favorite presidents was harry truman. he once said every seven years or so, the government needs a housecleaning. and i think that's a good rule of thumb. so i think the second church inquiry or something like that would be very helpful. but, you know, let's not be fully pessimistic about oversight in america today. we need to worry about what diane is talking about very much i agree. but, you know, the democracies around the world la to the

united states and its post church and new accountability as something they want to emulate. and slowly but surely you can see holland and germany and england and france and new zealand and australia adopting serious parliamentary oversight committees. they still haven't gone as far as we have. most of those countries don't give those committees subpoena power, for example. so we're widely admired around the world for taking the dogma dark side of government and at least bringing some modicum of democracy to it. i'd also point out that before the church committee, the idea of having a five-year study of torture carried out by the cia would be unthinkable. you'd never have that. so there ever been some examples, i think, since the church committee of really rigorous oversight. and i've been in the room on the house intelligence committee where members have changed covert actions through dialogue with the dci.

this is stupid. this costs too much. what do you really want to achieve here? and as a result, the dci will go back to the white house and say the house or the senate thinks we need to make these modifications. and let's never forget the importance of the power of the purse. eddie boland in a later stage where he went from cheerleader to guardian turned off the spigots for covert action in nicaragua. as we know, that had terrible negative effects as people end underground in the administration and decided to carry out covert action regardless, but it's a good example of the ultimate power congress has if it wants to use it. >> but could i reply to that? >> sure. >> i would have to say there is no visible oversight today post 9/11. i see there may be things that they do on the sides that aren't

publicized. there is nothing on this big issue which is our freedom and the bill of rights and the very purpose these committees were established that they are now ignoring. i just don't see it. i think -- i agree that the feinstein report on torture was long overdue and probably deliberately delayed by cia by doing a huge data dump and then trying to take some of it back when they found out some incriminating things were in there. but why -- let's look at that. there is nothing done that is contrary to the administration in power at the moment, whether it be republican or democrat. in this case, the democrats felt that they could do a torture report because obama had already stopped it and opposed it. the republicans, unfortunately, did not support that because they felt it was aimed at bush. so this was a highly politicized thing.

it was the only thing really that i have seen that was done that made waves. and it was because they had permission from the president. that's why. so i just -- i am -- i'm -- to reform this one has to, first of all, get rid of the democratic and republican leadership in the house and senate. there is no hope otherwise. because they are pulling all the strings. and why can they pull all the strings? number one, because this is, these are the only committees on which they appoint the membership. so they have appointed almost all of totally membership that is supportive of this program. and then they manipulate the whole process, the whole legislative process, the whole

process behind the scenes. and so everything goes through the intelligence committees. the judiciary committees, if they have any views at all have to accommodate the intelligence committees before anything emerges. so this is a kabookie dance. the only thing that gets out is what the administration has already agreed to do and what the house and senate leadership agreed to. and mr. boehner said recently we don't mess around with this, it's very fragile. >> as mr. mondale has suggested, in the crucible of fear, the constitution can take on malleable proportions. but then we're a resilient nation, and i think we begin to bounce back. i think the times are changing. i think we're experiencing, we're in the middle right now of something of a sea change back toward the liberty side in this balance between security and liberty. and, again, the house vote is good evidence of this. and i would imagine -- i

certainly can't prove it but i imagine the comments made publicly by ron wyden and udall of the senate intelligence committee very critical of the metadata program has helped feed into that change that we're now seeing. so i'm a little more optimistic. >> could i reply to that, please? >> sure. >> get a dialogue going here. good for you to hear different points of view. i guess i'll take on the brennan institute -- >> sure. >> -- on this. i believe the usa freedom act is a red herring. and it is pretty much crafted by the administration to distract attention from everything else that they are doing. they're giving up what admittedly is, in effect, a program and still maintaining ties into it. the bill is riddled with problems that gradually increases transparency, it actually can decrease transparency. if you want to look at all this stuff, look at marci wheeler's comments on the usa freedom act. and what you have to do the other thing is, these -- you

know have we learned nothing? basically, what the administration has done is they have redefined terms they have exploited vague language, they have done all these things and we keep giving it to them over and over and over again. the same thing. and this bill is one big example of that. again. i just don't, i just don't -- i agree that it's great to have that metadata program ended in the administration, but look at what else there is. i mean, as i started before, we have e-mail metadata probably. we have things that are going on outside the fisa court. we have an enormous mail program many which they photographed the front and back of every letter, so don't put your return address on, okay? but, you know, we have everything on your computer.

everything is collected. you know? your e-mails, your chats, your -- it goes on and on and on. and -- let me finish. i'll get -- but i, and there are many other aspects as well. and i just think that this is, as i said, there are no options. all the browsing, all the websites, everything is collected. you can't escape it. there is nowhere you can go for electronic private. there is nowhere. and every potential terrorist, now, this is the same for them. i think we can impede it if only by -- they become very inefficient if they try to elude all of this. and basically, i think the other thing that has to be done is that people have to be told

there is no perfect security. there is nothing we can do that will absolutely give us protection against another terrorist attack. and we have already witnessed that. and there is no amount of intrusion into your privacy that will do this. >> and i think the president's review group that looked at the program actually put it very well, that part of security is security from unnecessary government intrusion into our private lives. but i've been terrible at time management, so let me just get some questions. john. john. >> is there a microphone we're supposed to use? >> go ahead, and i'll repeat your question. >> okay. i have a question for loch. do you remember in 1981 when barry goldwater insisted that bobby inman be the deputy dci and when barry goldwater

ensured, directly with the white house, that there would be full consultation on the revision of the executive order on intelligence with the bipartisan senate intelligence committee fully staffed to be able to review the white house -- to be able to review the white house executive order? and do you recall, does that adjust your view of barry goldwater's role? >> these are not pure types, john. there's no such thing as being a cheerleader. but as a tendency no it did i not doesn't change my mind. what changes my mind about him is when he finally got into a tussle with casey over the miners in nick ras rag what. then he became a true overseer. but i grant you your example there. >> and diane, to complete the record of the story, can you explain to people what we now know about the source of "the new york times" leak that was not you? >> well, actually, the russell tice had already admitted that he was one of the sources.

as i understand from reading i believe james risen has said once or twice there were about a dozen sources. but none of the other ones have been revealed. and risen took the unusual step of saying publicly on a number of occasions that it wasn't the five of us who were targeted and that he knew -- he didn't know any of us and had not received any information from us. >> and who was this person who came forward and said -- >> russell tice. >> and who was he, where did he work? >> russell tice was a contractor at an nro ground station, and if i want to depress you more, yes, the satellites are collecting on us too. but -- and he said that he had high-level clearances, and i think he was working nights, and he went there once to put a piece of paper into a burn bag which are usually bags about this big, you know?

paper bags in which they collect classified that is supposed to be burned. and he saw something in a bag that he thought was very unusual. he took it out and he read it, and that was his first insight into this program. and it appears thereafter he educated himself further from the burn bags. >> do you recall there was a justice department lawyer who also -- >> thomas tam also came forward, but he didn't give any content. all he told "the new york times" was that there was an illegal program, and he was also persecuted. he was an fbi agent from a long line of fbi -- >> and, again, shows there are a lot of conscientious employees within these agencies that are trying to get the information the public deserves to know. >> very quickly, one thing diane and i would certainly agree on is the hubris at the nsa. the attitude that if we we can collect it, let's collect it. >> may i also add russell tice is one of those who has stated

that there are numerous, very highly compartmented programs that target the elite in the u.s. which he has said include all three branches of government, congressional staff, congressional members, judges including the supreme court, attorneys, white house staff. apparently they check loyalty. reporters, first of all. if this isn't population control, what is? >> greg. >> mic. eg >> i'd like to shift ground a little to what i think is a central question that really hasn't been touched on. there's been a lot of very important information about how the executive branch does oversight of the congress and valuable insights about members and different orientations of

members on the committees. but as to the core question of how can these committees and especially staff really do oversight's effective and penetrating of the agencies, there really hasn't been much discussion. so i'd like to ask a question of all three of you. i've been trying to do that after the church committee -- for house and senate intelligence and at the white house under carter for the iob. and i've evolved four or five basic rules for how staff or committees can do effective intelligence. and i'd like your comments on them. it's not a letterman list, and i'll be brief. one that was touched on by diane is that -- and there's some expose, and they say you got us, and here's the stuff. that means you've got to look

for what they're not pointing to and what they don't want you to get into. and diane indicated that. the second thing with regard to the briefings, my second rule is that when the agency head and his top aides say there are no more records, they've all been destroyed, we have not -- there's nothing left for you to look at, they're probably telling the truth as they know it. you have to go into the bowels and talk to the people who were involved, and you'll probably find out that there are files somewhere. that's how i found the lamumba assassination and the drug testing for the church committee. but the most important rule is the following. i think at the end of the day the only way to have effective oversight, especially of prayings operations that inping on u.s. citizens is for the staff on a random basis to have full access to the file on an

investigation or an operation. and to look and see whether it complies or whether they complied with all the rules and executive orders and statutes. and if they didn't, what is to be done? and if they did and it still shows problems, what indicates about how those rules and statutes have to be revised? unless that's done, i think it's been done by the committees sporadically. but to me, unless that's done, you don't have effective oversight, and i'd like your comments. >> oh, i think all the rules you mention are excellent, and as i look at people in the first two rows here, we have some masters at ferreting out information from the executive branch. the church committee was one daily struggle after another to get access to information. and you and others became quite effective at it. i think a lot of it is done informally, most oversight is

done informally with staff developing a relationship with people in the executive branch, you know, going to breakfast, going to lunch, being on the telephone, going overseas and visiting the u.s. embassy, and you've got to do all that without being co-opted. you've got to keep your distance so you don't become part of the organization you're studying. so it's dialogue, by and large. >> can you do it without looking at randomly at files of operations? >> i love this word, "randomly," and i think it's extremely important. we don't do enough of it. in canada, believe it or not, they're much more effective of these random searches of intelligence files, and we need to do more of that. >> could i say i agree with all your points, and regarding the one that's most important, i think we have to go even further. we have to have a technical i.t. team that goes and gets into all their computers and has systems

administration rights and so on to find the stuff that's buried. and if this ever comes out, there has to be a law immediately passed that if anybody destroys evidence, they will be hauled before a court. >> and i think one of the things that's key as well is, you know, we talk about the section 215 telephone metadata program which, when edward snowden leaked the scope of it, became a topic, and we were all talking about how it was used for terrorism and how it came into being. only to much later find out the dea had been doing something very similar for decades. so unless you're doing something that touches all the agencies, a comprehensive investigation, you're not really going to understand where there might be other activities that are equally -- >> could i also add just one sentence here? the nsa program started no later than 199 and was hidden from congress.

and this is -- this was a program looking for an excuse, and they found it. >> i'd like to ask a question about how can we have an effective oversight if you have secret records and then you also have record destruction? sort of responsive to the comment you just made. and let me give a specific example which i admit is a historic example. when judge green orders the preservation of fbi records in 1980 you established the national archives special fbi record task force. and that task force invited historians to make recommendations as to the kinds of records that should be preserved permanently because of their stark value. and i served as a consultant to that task force. and in my own research, i had come across the fact that there seemed to be the case where fbi officials maintained separate office files.

and the specific discovery i had was in a 1946 memo where the fbi director was briefed about the accessing certain records. and he asked the questions where were these records maintained? and the response was the toolson file. so one of the recommendations i made to the archives force was seek to ensure the preservation of fbi officials' office files but spefkly lyspecifically the toolson file. in response to that, there was not only the disclosure that there was a tolson file, but there was this memo that was created in 1975 that was responsive to the letter sent by senator mansfield to all the intelligence agencies to abandon their normal record destruction procedure and preserve all records. and this created a certain problem because what fbi officials discovered was that in violation of hover's march

1953 order, that fbi assistant directors ensure the regular destruction every six months of their office files, that toolson's file was maintained for the period '65 to '72. so what we find out is that, in fact, fbi officials were regularly destroying office files, included their sensitive records, and that for some pea kul yar reason -- maybe it had to do with the fact that hoover reached the mandatory retirement age of 65 there was a decision made to preserve this office file from '65 to 72. so my question is how can you have effective oversight if not only is the case that intelligence officials insure that records are, secret records are maintained but also to insure against discovery destroyed on a regular basis sensitive records? >> yes. and the obvious example was

the torture videos is another one. that's why i think that you need a technical team that will -- all these files now are electronic. they're all on computers. and so you need a technical i.t. team that goes in and searches. it has full range of a search to find this stuff before it gets destroyed. >> i once asked bill colby what can congress do if it's lied to by agencies in the intelligence community? and his response was when you find out about it, as eventually you will, come down hard on these agencies and shame them and cut off their funding for certain programs. there are tools of retaliation. >> i agree. the budget is the biggest power that congress has, and i think if we would have the nsa budget, we'd have a lot less trouble. >> go ahead. sir.

>> steve winters of washington-based researcher. i've been following the investigation in the german parliament, the bundestag where they have an intelligence committee and, of course bill binny gave extensive testimony there. he told me, it's amazing, over there they want to hear my story, they want to hear what happened. but i don't see that here. and also because of the, obviously, the connections between the -- our intelligence agencies and their intelligence agencies, in essence, their investigation is as much an investigation of certain practices at nsa, and it's really heating up over there. so what's really striking to me is that there's so little come anything this direction from that investigation because being as old as i am, i can remember the church committee and the spirit, and the spirit of this committee in germany. a lot of those people, it really reminds me of the church committee. so i think it's worth being aware. there is an investigation, there is a very active investigation going on right now in the spirit

of church committee, and we -- why don't we invite some of those people over here and get a little bit going back and forth? >> thank you for that. >> comments on that? >> i can say i've been in touch with that committee, and they're doing a good job, i think. let's keep in mind that in germany you have the memory of the nazis, the gestapo. and you also have the memory during the cold war in east germany of stasi, and they find intelligence organizations potentially highly toxic. and that's one of the reasons they're very agitated. >> they're agitated, but what the germans want to do is join the five is and make it six is. >> this has to be the last one, i'm afraid. i'm sorry. marty. >> this has been a fascinating revelation. your experience. in 1975 and '76, with the discovery of the capacity of nsa

and other agencies to acquire information not only about individuals, but about every subject that affects mankind, the question immediately arose what do we do with this mass of information? how do we make use of it? how do we prevent the kinds of abuse that you've indicated? we wrote a report that's contained in volume four of the supplementary documents that we published on intelligence. it was written by dick garwin, one of our country's most prominent physicists, a member of manhattan project and an

extraordinary can-do sort of person. we asked him to look into the future, and the future that he foresaw. as bobby inman foresaw, which was an ability which would be exponential in acquiring data. the problem was addressed about massive files, what do you do with the discrimination of information on massive files? increasingly massive, totally -- the electronic world is accessible now. the answers that were given at

that time by us, as well as by the technical people of the quality of dick garwin, was minimization. you have to work on the question of minimizing the files, what's kept, what's -- what's distributed. you have to be very specific about who has access and why. this is the essence of the warrant procedure. and in the world of mega information, the problem is still the same. >> right. >> and the answer is still the same. make rules and regulations about who has access and why. >> but could i add to -- >> and how long.

>> when i went to see general hayden in july of 2002, he told me we are not in the business of minimization. >> that's a -- >> they have claimed since then that they are, but it is basically a joke. if they really wanted to minimize, they want encrypt the site and they would keep a track. but they deactive yalted that code. and it's still deactivated. and if the congress wants to know what they can do, that's what they can do. they can demand that. >> so i'm afraid we've run out of time. it's been a fascinating panel. mreefz give diane roark and loch johnson -- >> thank you.

>> so i think we're going to get started. welcome back, everybody. i work at the center for justice and we have three wonderful speakers with us this afternoon. as we turn from the issue of legislative oversight to the issue of judicial oversight of intelligence activity and also of national security cases more broadly. so our panel is actually really wonderful. and i think we're going to hear a variety of per sift speculatives on this. to my left, i have david negene. he recently has been serving as the chair of the privacy and civil liberties oversight board, which as many of you know shows

there critical function of protecting privacy in civil liberties as we see more and more expansive countertimperrorism programs in the post 9/11 world. in particular, the club has issued two reports one on section 215 of the patriotic act and another one on section 702 of the amendment act and is currently working on the big kahuna, the counterterrorism programs under executive order 12333. to his left is the director of the national security project at the aclu and has litigated many national security cases as well as having been involved in a variety of projects to re formform intelligent laws. finally on the left is judge robertson who served for three years on that court and maybe you'll tell us about your

service there and why you left, as well. so did she r -- and i'm hoping with these three panelists to get oversight on how they work. david has graciously agreed to step in for judge wald who is unable to join us because of a family emergency. so with that, i'm going to start and i'm going to start with you, judge robertson. and i'm going to start with a very general question which is can you tell us, from our perspective perspective, what are the trends and weaknesses of the national oversight security cases and especially those involving intelligent operations? >> the first thing i have to do is to quarrel with the word oversight or to talk about oversight versus judicial decision making. judges are not used to being overseers. and the oversight idea is a little strange.

and the whole fisa court concept concept, at first wasn't oversight of anything. it was issuing warrants. judges can issue warrants. they know how to do that. and the search warrant process has consumed the first 15 or 20 years of the fisa activities was the bread and butter of what fisa was doing. it's only in later years -- we'll get to that point. but if and to the extent we're talking about injury additional oversight, i have to say -- and i hope this doesn't sound cynical, but i have to say that the chief strength of it is whatever public reassurance there is in finding that these unimpeachable -- almost unimpeachable black robed, life-tenured, article 3 judges are deciding things. that should reassure people that

there's no politics involved. even that is undercut by the whole -- by some of the suggestions that the court has been a rubber stamp that it's political. i'd deny both of those charges and we can spell it out if you need to. but it's the fact that judges are doing it. on weaknesses, in my view, the biggest problem is where i began. the biggest problem is when fisa -- it's not deciding a case it's doing something different. and i don't think the judiciary

should be doing that. >> so let me ask you about this issue about the court being a rubber stamp. and a lot of that argument comes from what the courts have approved. a lot of courts have pointed out that that's not a very accurate understanding of the role the court has played because a number of modifications are issued and there's a back and forth process between the government and the judges to get things right and that's why you see such a high rate of approval. but my question really is that back and forth process which is taking place entirely in secret and behind closed doors, does that give you any pause in terms of thinking about the kind of role that the fisa court plays? >> well, i -- i always distinguished the warrant issuance function from the program approval function which is where i part ways with what's

been happening. but with the warrant issuance function, it wouldn't call it ministerial, but it is not, frankly, rocket science. the justice department people who help prepare the warrant applications, the fbi who do it the cia who do it, all the people who are working on preparing warrant applications are fastidious careful, precise, and if they're not, they get sent back to do it right. so it is true there's some back and forth. but it isn't back and forth on real arguments about the law. it's did you identify this person properly, do we know what reliance you have on this particular informant and why? have you properly described probable cause? but that's all warrant application stuff and it's not -- it's not -- i would not

put an adversary in the room for the issuance of warrants any more than i would issuance of search warrants by magistrate judges. >> so you litigated a number of these kinds of cases and do you agree with that assessment, that this trend of judicial -- i'm going to call it oversight but judicial review, shall we say for position of intelligence operations and national security cases is the strength of the federal judiciary and what do you identify as the weaknesses? >> it's always good to start out with agreement, right especially with a former judge. and yes, i agree that judicial review is a strength, obviously in part by a system of checkes and balances. and i think that that has been demonstrated in this particular surveillance context by the second circuit's discussion in aclu versus clapper recently in which for the first time an

appeal escort took on and examined after an adversarial process, surveillance authorities that had been deeply controversial, that had been criticized as overbroad conducted meticulous and comprehensive analysis before finding that, in fact the core records program was unlawful. and that is, i think undoubtedly a strength, the strength of our system, it's the strength of checks and balances. the problem is that with respect to national security policies and intelligence agencies generally, this kind of decision is the exception and certainly not the rule. and i think that's the problem in the period of time i've been fascinated all day long and last night listening to the experiences of the members of the church committee talking about the oversight that they conducked and changes that resulted. at the extent to which we're now back in a period where the

intelligence agencies have undergone a a radical transformation in terms both of what they do, how they do it, the sources of authority that they claim and the extent to which those sources of authority have been secret in many instances remain secret. so you have the cia, for example, stepping away for a moment from the nsa, and the cia, for example which has gone far beyond legitimate foreign intelligence gathering purpose and engaged into the push administration in a program of torture and unlawful detention. you have it in an expanded program under the obama administration where it was turned, essentially, into a paramilitary organization running a lethal force program far from including lethal force and from my battlefield. that's just one example of a set of many controversial policies and practices which the court has not engaged on the merits. over and over again in the last

ten years we and others have filed multiple cases, multiple briefs challenging these controversial policies. almost without exceptions, those cases have been dismissed they've been thrown out on standing state secrets immunity doctrines political question doctrines. and what that has meant, many things, but among the things that that has meant is that the judiciary has not engaged on the merits with some of the most controversial policies in the national security intelligence arena with huge impacts of individuals, including the right to life, privacy first, fourth and fifth amendment rights. and through the decision not to engage on the merits, far too often, the judiciary has written itself out of saying not just what the law is but whether the

executive branch has con complied with it in hugely significant areas of national security and civil liberties. >> you look at these intelligence programs from a different perspective. you're learning how these programs and getting the understanding as well as the force hearing from the civil liberties groups who are advocating on performing these programs. how do you see the judiciary as a sort of counterpart to the work that you're doing? >> first of all, i agree with what of what has been said by my prior panelists and my views are my own. i think the court plays an important role. i think as credibility to its

review, the court has an appellate process where it can correct decisions. >> and you mean the fisa court or -- >> fisa court, but we can talk later about how they approve that. i think the down side of courts generally is they're not often well equipped to handle these cases. the process of handling classified materials, getting staff of clearances, and just the challenge to the court. i think the courts have shown taking on the government when the government asserts a national security interest. they tend to defer to the government on that rather than challenge to government or look to the government and look for the least intrusive methods. so i think the courts should strengthen their review. i think we compliment the court's efforts because we have some advantages. we have less formality. we can make with the nsa and the cia and the fbi informally. we can confer with congress,

revenues, the standing requirement and we can have a review that's not limited to legal review. the second circuit adopted much of offer legal analysis. also whether the program strikes the right balance between privacy and civil liberties on one hand and national securities. >> so what do nk? do you think they aren't equipped to handle these classified evidence secret creepy programs or -- >> well, i could not agree more. i mean the truth is that most federal judges defer almost automatically to the justice department that they bring in a guy called a security officer. they tell you what you have to do. they bring you a safe and put it in your office. but you don't know how to open the dam thing most of the time.

no matter what kind of classified information you're handling, it's difficult to handle it. it's difficult to deal with it. but more than that there is this -- this deference that judge s judges pay to the government in all matters of national security. frankly, i think they should defer. not only because it's the separation of powers question, but because what do we know about intelligence? what do we know about the merits of -- we're not trained intelligent officers, although i actually did serve in the office of naval intelth intelligence for a while. i served as the administrative officer to a young captain whoever is running naval attach yeahs around the country. i still don't know anything. it's a very specialized field

and, of course, security is a world of its own. we can -- we need three more seminars on the oversecuritization of life in america. but that's not today's subject but it does intrude on the way we -- on the way we handle classified material in court. so yes, we defer. issue, but the second circuit finally adopted the theory that

pclob came up with and that never surfaced in any type of proceedings. there was no adversary in any fisa proceeding who made the point that pclob made. i've gotten a lot off the track. >> that is fine. >> i have to give kudo toes pclob because they deservive. >> there was reference made to the extensive citation and that is an interesting dynamic to see between these two institutions laying off each other i think. but coming to your point about judicial deference to claims of national security, there is, obviously, a separation of powers concerns over there. but is there some instances in which we see the judiciary be perhaps too automatic in deference to that? maybe you want to talk about staff issues. >> so i think it sort of begs

the question about deference with respect to what? sernl when we're talking about the criminal context, there's the classified information procedures action. and the courts have shown themselves more than capable of being able to adjudicate cases involving national security terrorism, sensitive information and still do so fairley. it's one of the strength of our criminal justice system. i think about the context of kwan tan mow where the courts in d.c. have certainly shown themselves fully capable of adjudicating those important habeas cases. i'll put aside for now the d.c. circuit decisions in which review has been circumscribed to i think the detriment of our system. but i do think and perhaps, judge robertson, you're being modest, but i do think that the courts are very well able to

address issues of classifications, indeed they do so all the time and every day. i think the concerns arise when, for example, the executive branch makes extreme claims with respect to classification. it did so recently in a case that is currently before the d.c. circuit with respect to videotapes at guantanamo where the government said the video taims tapes were classified and the judge had no authority to order their disclosure applying the first amendment rights of judicial access. there are certainly arguments to be made, but the argument made was for complete deference to the executive's classification decision. and that is something that i think we look to the courts not to do. we look to the courts not to defer when the executive branch

sdiepdz what its interpretation of the law is. that is a quintessential judicial function. and the classification authority, including with respect to opinions classified opinions interpreting the law should not deserve that same kind of deference. certainly i think we can all agree that there are legitimate things that must be classified and kept secret from everyone, sources and authorities, for example, legitimate sources and methods.