said in her speech. the first time she tried to keep this all quiet tried to keep it in the family was unsuccessful in getting them to back down. they had taken documents off the staffers' computers that they had been given and had sequestered there and she went quietly to the white house counsel who got them to agree that they would never do it again and, but there's no indication those documents were ever 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, she said but instead what she should have done, and

we'll back these people in court. >> so how do we get to a place. how do we reform this system? have you had any thoughts on what either the committee can do or what laws can be passed and obviously passing a whistle-blower protection law and giving them rights to enforce those rights. >> i have many idea ss. i don't know. i don't know that they'll be palatable to a lot of people, but it's pretty clear. we are still far gone nobody i think most people do not realize how far down this road toward a complete overturn of democracy we are. i see this as population control, bottom line. that's what it is. that's the only way it can be justified. it cannot be justified by

terrorism. it is not helping with terrorism that much, at least some of the domestic surveillance programs. there has not 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, but what is the use of all this data? why do they still say in the words of chris ingliss, we have to have it all and they want to own the web. that was a big thing earlier too. why? it's because all this information contrary to what they said had said sometimes publicly all of this information is filed under your phied entity as soon as it comes in. it's automatically filed and that was bill benny's contribution to the system. a very good database and with all your social circle and all your connection, it's all there and people don't realize how

much data is involved. this so-called metadata is a tiny tiny percentage of it. i'm not saying that this is a very significant thing trying to take the meta data database away from the nsa and cia and fbi and everybody else which most people ignore, but this -- this whole program is so massive that there's no way, nowhere for any terrorists to go to hide. listen, i know. i've been trying to find some shred of privacy since 2006. >> and i'll attest to that. [ laughter ] >> and i want to put this out. this, now you think that there's phone meta data that the administration has focused everything on this as a red

herring to keep you from looking at everything else you're doing and everything snowden has revealed. there was email meta data which they also claim now that they have stopped and 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 fisa court's purview because their requirements were too expensive and that's what chris ingliss said and they moved it into the section into overseas collection of the databases held by the isps and telcos overseas which include a lot of domestic stuff. >> so clearly, part of the problem is we still don't know enough. these questions why why do these programs -- what other programs are out there that we don't know about. you signed on to the report

asking for a comprehensive investigation. >> i do, indeed. one of my favorite presidents is harry truman and he once said every seven years or so the government needs a house cleaning, and i think that's a good rule of thumb. so i think the second church or something like that would be very helpful, but you know let's don't 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 look to the united states and its post-church, newaccountability as something they want to emulate and slowly but surely you can see holland, germany, france and england and australia, new zealand adopting a serious parliamentary oversight committees and they still haven't gone as far as we and most of those countries don't give them subpoena power,

for example, and we're admired for taking the dark side of government and bringing some modicum of responsibility and 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 have been some examples i think since the church committee of vigorous 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 have to make these modifications and let's never forget the importance of the power of the purse. eddie bowman at a later stage when 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 went underground in the administration and decided to carry out covert action regardless of the bowman amendment, but it's a good example of the ultimate power the congress has if it wants to use it. >> 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, you know, that aren't publicized? there is nothing on this big issue which is our freedoms 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 the -- i agree that the feinstein report on torture was long overdue and probably deliberately delayed by the cia by doing a huge data dump and

trying to take it back to find 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 the -- 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 -- too 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 are they pulling all of the strings? number one these are the only committees on which they appoint the membership so they have appointed almost totally membership that is supportive of this program and then they manipulate the whole process and the whole legislative process and the whole process behind the scenes and so everything goes through the intelligence committees the judiciary committee, if they have any independent views at all have to accommodate the intelligence committees before anything emerges and this is a kabuki dance. the only thing that gets out is what the administration has agreed to do and what the house and senate leadership agreed to and mr. boehner said we don't mess around with this, it's very fragile. >> as mr. mondale has suggested in the crucible of theater, the

constitution can take on malleable proportions and we're a resilient nation and we can bounce back, and 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 the house vote is good evidence of this, and i would imagine and i certainly can't prove it but i imagine the comments made by rob widen and ucall of the program, has had the change we're now seeing and i'm a little more optimistic. >> could i reply to that, please? get a little dialogue going here. it's good for you to hear different points of view. i think i'll take on the instewed of on this, and the freedom act and it is pretty much crafted by the

administration to distract attention from everything else, and they are giving up what admittedly is an ineffective program and still maintaining ties into it and the bill is riddled with problems that allegedly increases transparency and actually can decrease transparency. if you want to look at this stuff look at marcy wheeler's comments on the usa freedom act, and what you have to do -- you know, have we learned nothing? basically what the administration has never done. 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 meta data program ended in the administration but look at what else there is. i mean as i started before, we have email meta data probably. we have things that are going on outside the fisa court. we have an enormous mail program in which they photograph the front and back of every letter so don't put your return address on, okay? but you know and we have everything on your computer and everything is collected. your emails and your chat and your -- it goes on and on and on, and -- let me finish, but i -- and there are many other aspects, as well, and i just think that this is -- as i said, there are no options and all of the browsing and all of the websites and everything is

collected. there -- you can't escape it. there is nowhere you can go for electronic privacy. there is nowhere and every potential terrorist. this is the same for them. i think we -- 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 the 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 the 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 that we're supposed to use? >> go ahead and i'll repeat your question. >> i have a question for each of you. do you remember in 1981 when barry goldwater insistered 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 and intelligence with the bipartisan senate intelligence committee fully staffed to be able to review the white house draft of an executive order and if you recall those does that adjust your view of barry goldwater's role? >> these are not pure types, john. there's no such thing as someone

being an unallied cheerleader. no, it doesn't change my mind. what changed my mind about him is when he finally got into a tousle with casey over nicaragua and then he became a true overseer, but i grant you your example. >> 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 they -- 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 that there were about a dozen sources, but none of the other one his 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 didn't know any of us and had not received any information from us. >> and who was this person who came forward? >> russell tyson. >> and who was he? where did he work? >> russell tice was a contractor at an nro station and if i want to depress you more, yes, the satellites are collecting on us too, 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 usual lie bags about this big and paper bags and they were supposed to be burned, and he saw something in a bag that he thought was very unusual and 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 bag. >> if you recall, was there a justice department lawyer. thomas tam also came forward,

but he didn't give any content and 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 agents. >> and again shows there are a lot of conscientious employees within the agencies that are trying to get the information. >> just one thing very quickly, and the hubrus at the nsa and the idea that if we can collect it let's collect it. >> 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 and congressional staff and congressional members and judges including the supreme court and attorneys, white house staff.

apparently, they check loyalty also. reporters, most of all. if this isn't population control, what is? >> okay. >> mike? >> i'd like to shift ground a little to what i think is a central question that really hasn't been touched on and 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 that's effective and penetrating of the agencies. there hasn't really been much discussion. i would like to ask a question of all three of you. i've been trying to do that for

after the church committee for house and senate intelligence and if 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 would like your comments on it. it's not a letterman list, and i'll be brief but one that was touched on by diane is that when there's some expose and they say they've got us and here's the stuff that means you have 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 debriefings, my second rule is that when the agency head and his top aides say there are no more records. they've all been destroyed. 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 operations that impinge 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 and it complies and whether they comply with all of the rules and executive orders and statutes and if they didn't, what is to be done then if they did and it still shows problems what it 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. i'd like your comments. >> i think all the rules you mentioned are excellent as i look at people in the first two rows here. we have some masters at ferreting out information on the executive branch and the church committee was one cally struggle after another to get access to information and you and others became quite effective at it, and i lot of it is done informally and most was done informally with staff developing a relationship with the executive branch and going to breakfast and going to lunch, being on the telephone and 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 and you should

have the files of operations. >> i think it's important and we don't do enough of it and 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. >> can i say i agree with all of your points and the one that's most important, and i think we have to go even further and we have to have a technical i.t. team that goes and gets into all their computers and they have systems administration rights and so on to find the stuff that's buried and if this ever comes out, there also has to be a law immediately passed and if anybody destroys evidence, they will be hauled before a court. >> we talk about the section 2 telephone meta data program when edward snowden leaked the scope of it and became a topic and we were all talking about how it was used for terrorism and how

it came into being and only to find out much later the dea had been doing something similar for decades and unless you're doing something that touches all of the agencies and the com pro hencive investigation you're not going to understand where there might be other activities that are equally -- >> can i also add just one sentence here in regard to what you said? the nsa program actually started no later than 1999 and was hidden from congress. and this is this was the program looking for an excuse and they found it. >> if you have secret records and you'll also have record destruction and responsive to the comment you just made and let me give a specific example which i admit is a historic example.

when judge green ordered the preservation of fbi records of historic value in 1980 you had established the national archives special fbi record task force, and that task force has invited historians to make recommendations into the kinds of records that should be preserved permanently because they were historic 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 a case where fbi officials maintained separate office lives. the specific discovery i had was in a 1946 memo where the fbi director was briefed about accessing certain records and he asked the questions where were these records maintained and the response was the tollson files and one of the recommendations i made to the archives first was to seek to ensure the

preservation of fbi officials office files was specifically the tollson files. in response to that, was there not only the disclosure that there was a tollson fire and there was a fire that was created in 1975 that was responsive to the letter sent by mansfield to all of the intelligence agencies to abandon their normal record destruction procedure to destroy records and this created a problem because what fbi officials discovered was that in violation of hoover's march 1953 order, that fbi assistant directors ensure the regular destruction every six months of their office files that tollson's file was maintained for the period of '65 to '72. so what we find out is in fact the fbi officials were destroying files and there were sensitive records and for some peculiar reason, maybe it had to do with the fact that hoover

reached retirement age of 65 there was a decision made to preserve this office file from '65 to '72. my question is how can you have effective oversight if not only is the case that intelligence officials ensure that records are secret records are maintained, but also to ensure it gets destroyed on a regular basis sensitive records? >> yes. 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 and has full range of search to find this stuff before it gets destroyed. >> 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 and 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. >> yes, go ahead. [ inaudible question ] >> steve winters, a washington-based researcher. i've been following the investigation in the german parliament the bundestag where they have an intelligence committee and bill gave extensive testimony there and they told me that it was amazing and they want to hear my story and they want to hear what happened and i don't see it here and also because

obviously, the keckeds between our intelligence agencies and their intelligence agencies and in essence their investigation is as much an investigation of certain practice of the nsa and it was really heating up over there and what's really striking to me is that there's so little coming in this direction from that investigation because being as old as i am i can remember the church committee and the spirit of this committee in germany and it reminds me of the church committee. i think it's worth being aware there is an investigation and a very active investigation going right now in the spirit of the church committee and why don't we invite some of those people over here and get a little bit going back and forth. comments on that? >> well, i will just say that 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 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. >> this has been a fascinating revelationfvelation of your experience. in 1957 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? what's contained in volume 4 of the supplementary documents that we published on intelligence was written by dick garwin, one of our country's most prominent physicists and member of the manhattan project and an extraordinary and an extraordinary can-do sort of person. we asked him to and also fore saw was an ability which would be exponential in acquiring

data. the problem was addressed about the massive files and what do you do with the discrimination of information on massive files, increasingly massive totally, and 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 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 and 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 that -- >> -- and for how long? >> when i went to see general hayden in july of 2002 he told me we are not in the business of mine myselfation. >> well that's a crime. >> they have claimed since then that they are, but it is basically a joke. if they really wanted to minimize they would encrypt u.s. identities and they would keep a track and they deactivated that code, and it's still deactivated

and the congress wants to know what they can do and they can demand that. >> so i'm afraid we've run out of times of a fascinating panel. [ applause ] >> okay. the supreme court finished up its term issuing three decisions and just before 6:30 we'll show you oral argument from those cases. we'll begin with the justices overturning the obama's administration's air quality ruling deciding 5-4 that the environmental protection agency did not properly consider the costs of the regulation. in another 5-4 decision the

justices ruled that states mae use the drug medazolam in executions. in a third 5 to 4 decision they draw district lines in arizona that could have created upheaval for cases across the country. that oral argument airs past 9:00 tonight. tonight on the communicators. we visited microsoft's washington, d.c. office to hear about their lobbying goals and current research projects. we'll talk with vice president of government affairs fred humphreys and corporate vice president of research and research engineering manager michael leskowski. i'm hopeful that congress will take on high-skilled immigration because you know, h1b is still very important and frankly, some of the number, and the researchers that are here, we have people from all over the

world that make contributions at microsoft for our scientists and engineers and it's for other companies as well. there's still a need when you look at it from a job perspective. >> the application of project premonition is actually to collect mosquitos that have bitten people to determine what kind of viruses might be around what kind of diseases might be around through taking the blood samples of the mosquitos and figuring out the genetic code of some of the constituents of their blood. >> the premise of this research project was around what we would be able to do with data that's freely available in the environment today. one of the things that we've notice side that there are a lot of aircraft flying around in the

united states that could be considered sensors. they have data on them that are providing information. they're freely available and provided by the faa and there are companies like flight o wear who use that information to provide information to the community about what airplanes are doing. so we decided to take that information and see if we could use that to help us predict a more accurate wins aloft forecast. >> the wins aloft. so what the wind is doing in terms of speed and direction at various altitudes above the surface of the earth. >> a visit to microsoft's washington, d.c. office tonight at 8:00 eastern on the communicators on c-span2. tonight on american history tv, this coming august will mark 70 years since the hiroshima and nagasaki atomic bombings. the atomic heritage foundation is the host of this conference on the manhattan project which

produced the first nuclear weapons during world war ii. at 8:00 p.m. girls of the manhattan project and at 4:30 espionage at the manhattan project and remembering manhattan project director general leslie grows and physicist j. oppenheimer and that's on american history tv here on c-span3. new jersey governor chris christie is expected to make a presidential campaign announcement tomorrow. yesterday he released this pre-announcement video. ♪ >> i get accused a lot of times of being too blunt and too direct and saying what's on my mind just a little bit too loudly. i have an irish father, and i had a sicilian mother. now for those of you hooting you know what that means, right? my mom was the one who set the rules and set the tone. no suffering in silence.

you've got a problem? tell me. she would tell us every time she had a problem to the point where we were, like, mom, do we have to hear this? and she said yes. i need to get it off my chest now. there will be no death bed confessions in this family. you're going to hear it now. in 2004 my mom got diagnosed with cancer, and all of you who have lost a family member to cancer you understand what the scene is like and she grabbed my hand and said christopher, there's nothing left unsaid between us. it was an incredibly powerful moment in my life, and that moment was created by her. her whole life. i knew she loved me and she knew i loved her. when people wonder why i do the things i do that moment affirmed for me forever that i'm going to be this way. i know if my mom were still alive she would say to me, i taught you that in a trusting relationship you don't hold

anything back and if you're going to run for president of the united states and you're going to ask these people for their vote that is the single most trusting thing they can do as a citizen is to give you their support. so you better tell them exactly what you're thinking and exactly what you're feeling, and when you ask about my moral compass that's it. that's it. >> and we'll carry governor christie's announcement tomorrow when it happens on the c-span networks. you'll be able to see again tomorrow night at 8:00 eastern on c-span. like many of us, first families take vacation time and like presidents and first ladies, a good read can be the perfect companion for your summer journeys. what better book than one that appears inside the personal life of every first lady in american

history. first laiddyiesladies, presidential histories on the iconic of american women. inspiring stories of fascinating women who survived the scrutiny of the white house. a great summertime read. available from public affairs as a hard cover or ebook through your favorite bookstore or online bookseller. this summer book tv will cover book festivals from around the country and top non-fiction authors and books. in the middle of july we're live at the harlem book fair at the literary event and panel discussions. in the beginning of september we're live from the nation's capital celebrating its 15th year and that's a view of the events this summer on c-span2's book tv. >> we have more now from the intelligence oversight in washington, d.c. and the current oversight of the intelligence agencies and what lies ahead. this panel focuses on the role

of the judiciary. former congressional staffers who worked on intelligence oversight for lawmakers were among the speakers at this event hosted last month by the brennan center for justice. >> welcome back everybody. my name is sandia patel and i also work at the brennan center for justice and we have two wonderful speakers with us this afternoon as we turn from the issue of legislative oversight to the issue of judicial oversight, of intelligence

activities 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 views and perspectives on this. first of all to my left i have david medin who has done data privacy and most recently he's served as the policy of civil liberties and oversight board which as many of you know serves a critical nufrpgz in protecting privacy and civil liberties as we see more and more expansive counterterrorism programs in the post-9/11 world, in particular, the pclub has issued two reports one on section 215 of the patriot act and another one on section 702 of the fisa amendments act and is currently working on the big kahuna the counterterrorism programs under executive order 12333. to his left is shinna dempsey who works at the aclu and has

litigated many national security cases as well as having been involved in a variety of projects to reform intelligence laws, and finally on the far left is judge robertson who served on the district of columbia district court and also served for three years on the fisa court. three years, right? yeah. and maybe you'll tell us about your service there and why you left, as well. so, and i'm hoping with these three panelists to get three very different perspectives on how judicial oversight works. david has actually 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. i'm going to start with the very general question which is can you tell us from your perspective, what are the strengths and weaknesses of

judicial oversight of national security cases and especially those involving intelligence 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 at first wasn't really oversight of everything. it was issuing warrants. judges can issue warrants. they know how to do that, and the search warrant process that 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 and we'll get to that point, but if to the extent we're talking

about judicial oversight and i have to say and i hope this doesn't sound cynical and 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 tenured judges are deciding thing, that should reassure people that there's no politics involved. even that is undercut by the whole -- by some of the suggestions that the fisa court has been a rubber-stamp, that it's political. i 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 that is its biggest strength. on weaknesses well we're going to get to, that i think. but in my view the real -- the

biggest problem is where i began. the biggest problem is when fisa does oversight instead of deciding between competing views of the case with the adversary in the case it's not doing what judges are supposed to do. it's not deciding a case, and it's doing something different. it's doing some policy oversight and i don't think the judiciary should be doing that. >> so let me ask you a question about this issue about the fisa court being a rubber-stamp, and a lot of that argument comes from the number of applications from the government that the fisa court has approved and the fisa court judges and others have pointed out that actually, that's not a very accurate understanding of the role that the court plays because a number of applications are modified and there is a back and forth process between the government and the fisa judges to sort of get things right and that's why you see such a high rate of approval. 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 rule that the fisa court plays? >> i've 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, i wouldn't call it ministerial, but it is not frankly, rocket science. the -- the justice department people who helped prepare the warrant applications the fbi agents who do it the cia people who do it and all of the people who are working on preparing warrant applications are fastidious careful, precise or if they're not they get sent back to do it right.

so it is true there is 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 a warrant application stuff and it's not -- it's not -- i -- i would not put an adversary in the room for the issuance of warrants anymore than i would issuance of search warrants by magistrate judges. >> so you've litigated a number of these kinds of cases and do you agree with that assessment that the strength of judicial -- i'm going to call it oversight but for judicial review, shall we say for precision of intelligence operations and national security cases is the strength that the federal judiciary and what do you identify as the weaknesses?

>> it's always good to start out with agreement especially with a former judge and yes, i agree that judicial review is a strength obviously. it's part of our system of checks and balances and i think that that has been demonstrated in this particular surveillance context by the second circuit's decision in acl u-verse us clapper recently in which for the first time an appeals court took on and examined after an adversarial process, surveillance authorities that have been deeply controversial which have been criticized as unlawful and overbroad conducted really meticulous and comprehensive analysis before finding that in fact, the records program was unlawful and that is, i think undoubtedly a strength, it's a strength of checks and balances. the problem is that with respect

with national security policies and intelligence agencies generally, this kind of decision is the exception and certainly not the rule. i think that's a problem in a period of time has been fascinated all day fascinated all day long, last night, listening to the experiences of the member of the church committee the oversights they conducted and the change resulted. at the extent to which we're now back in a period where the intelligence agencies have undergone 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, just stepping away for a moment from the nsa. the cia, for example, which has gone far beyond its legitimate foreign intelligence gathering purpose and engaged in the bush administration a program of torture and unlawful detention.

you have it in an expanded program under the obama administration where it is turned essentially into a par military organization running a lethal force program far from including lethal force, far from any battlefield. and that's just one example of a set of many controversial policies and practices which the courts have 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 exception 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 on 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 complied with it in hugely significant areas of national security and civil liberties. >> so david you look at these intelligence programs from a different perspective. you're meeting with the nsa, you know many days through learning from the inside how these programs operate and really getting the intelligence communities understanding as well as of course hearing from civil liberties groups who are advocating on, you know,

performing these programs. how do you see the judiciary as a sort of counterpart to the kind of work that you're doing? >> first of all, i agree much that's been said by my prior panelists and also judge walt might agree with what i have to say, but my views are my own. i think the court plays an important role. i think the court adds credibility to its review. the court also has an appellate -- >> you mean fisa court or generally? >> fisa court -- although we can talk late ert about how the fisa courts do that, but i think the downside is they're generally not often well-equipped. so handling the process of claz fied materials getting staff clearances is a challenge to the courts. i think the courts have also shone some timidity in taking on the government when the government asserts a national security interest. they tend to defer to the government on that rather than

challenge the government for or look to the government to look for the least intrusive methods. i think it's always the court could strengthen their review. to make a pitch, i think we complement the court's efforts because we have some advantages. one is we have less formality. we can meet with the nsa and cia and fbi and we can also confer with congress without rules of evidence and standing requirements. and we can have a review that's not limited to legal review although obviously we did a legal review and i was pleased the second circuit adopted much of our legal analysis. but we can also do a policy review and make recommendations to both the president and to congress not only on whether something is constitutional or legal, which obviously are important, but also whether the program strikes the right balance between privacy and civil liberties in one hand and national security. >> so what do you think, judge robertson? is that right? do you think courts aren't well equipped to handle these kinds of classified evidence, secret,

you know creepy programs? >> look, i could not agree more. the truth is that most federal judges defer almost automatically to the justice department. 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 thing most of the time. your lock words may or may not be cleared. no matter what kind of classified information you're handling, it's difficult. it's difficult to handle it. it's difficult to deal with it. but more than that there is this deference that judges pay to the executive branch of the government in all matters that have to do with national security. and frankly i think they should defer. not only because it's a separation of powers question

but because what do we know about intelligence? what do we know about the merits of -- we're not trained intelligence officers. although i actually did serve in the office of naval intelligence for a while. i served as the administrative officer to a young captain who was running naval at shas around the country. i still don't know anything about intelligence. it's a very specialized -- very specialized for you. 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. and by the way, pclob deserves

all the credit, i think, for belling the cat on the illegality of the section 215 program. before the pclob report came out and said here's why it's unlawful as a statutory matter, everybody was chasing the constitutional issue. but the second circuit finally adopted the theory that pclob came up with. and that never surfaced in any fisa proceeding. there was no adversary in any fisa proceeding who made the points that pclob made. i've gotten a little off the track -- >> no, that's fine. that sort of leads up. i did notice too -- >> cueku kudos to pclob. >> that is an interesting dynamic to see between these two

institutions playing off each other, i think. but coming to your point about, you know judicial deference to claims of national security. you know there is obviously a separation of powers concern over there but is there some instances in which we see the judiciary being perhaps too automatic in its deference to that? maybe you want to talk a little bit about that issue. >> well, i think it sort of begs the question about deference with respect to what. certainly when we're talking about the criminal context there's the classified information procedures act. 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 fairly. it's one of the strengths of our criminal justice system. i think about the context of guantanamo where the courts in

d.c. have, you know, certainly shown themselves fully capable of adjudicating those important habeas cases. i'll put aside for now the d.c. circuit's 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 the courts are very well able to address issues of classification. 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 force feeding videotapes at guantanamo where the government said that the videotapes were classified and the judge had no authority to order their

disclosure applying the first amendment right of judicial access. there's certainly arguments to be made but the argument made was for complete deference to the executive's classification decision. and that's something i think we look to the courts not to do. we look to the courts not to defer when the executive branch decides what its interpretation of the law is. that is a quintessential judicial function. and the use of secrecy and 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 methods for example. legitimate sources and methods. but i think we've gone far beyond that in terms of executive branch's claims of

deference to based on classification and other secrecy concerns and our need as a democracy based on separation of powers and checks and balances to look at those claims of harm and so on. and i think here judge sax's decision in the aclu versus clapper case is really quite instructive. he points out that although the context is very different in the pentagon papers case, when the judge was hearing only from the government in open session about the harm that might come from disclosure and publication with the pentagon papers it looked like the government had a slam dunk case. but the "new york times" had very able council, said judge sack. and in closed session "new york times" council questioned high level officials at the department of defense and

department of state. and the judge ultimately found that the claims of harm from publication were not as strong. and the case came out the way that it did. and i think that that -- i think the judge did that advisedly as sort of the recognition of the importance of an adversarial process where claims of harm and classifications authority are not dispositive but are subject to judicial review. >> please. >> since we're passing our praise around, i wanted to turn some praise back to judge robertson who is a witness in one of our pclob's public hearings and talked about the shortcomings of the fisa court process. and if i recall said how judges hear one side of the case and find it very persuasive, as you're mentioning. and that currently is the end of the story in the fisa court. but then if the judge hears the other side of the case they say, aha, maybe that's interesting too. that's the judge's job to wrestle with those. and judge robertson's testimony

for me led to a recommendation that there be a special applicant in the fisa court so both sides could be heard. that's an example on 215 it took our report to essentially bring some legal issues to bear that the judges who were approving 215 every 90 days and approving the program initially never wrestled with the fact there wasn't even an opinion from the fisa court for many many years after the program was already operating. and, again, that's a shortcoming which is to say part of the fisa court can be improved but shows the shortcomings of the way it's been operating in the past. i think there's also an inherent challenge of the nonfisa federal judiciary that jumgdges are randomly assigned cases. it's a challenge for a judge to push back on government's entire national security program when the judge doesn't hear national security cases ever before or very infrequently. after judges wrestle with that that's a real challenge. i guess the last thing is the second circuit case i think maybe broke some ground on

standing because that as was said before that's been a real challenge to get in the judiciary involved in the first place is state secrets and standing. i think it's encouraging the second circuit found standing in this case for the aclu to challenge the program. >> well, it looks like we're very quickly getting into the fisa court. so let's explicitly go there. so, judge robertson, if you had been on the fisa court at the time the section 215 program came up to you right, and -- do you think there was a way available to you to make that process more adversarial? what i'm referring to now is the provision in the court's rule of procedures for appointing an amicus? is that an option? why has the court used it so infrequently? >> to be quite honest with you i never even knew that existed and never paid any attention to the

notion of am myicusamicus. and i do not believe had i been on the court at that time i would have behaved any differently than any other fisa judges. you know after the -- in the first fisa case to go up on appeal, the one that had to do with chinese wall and -- >> uh-huh. >> -- that whole issue judge silverman's opinion, infamous opinion that kind of called it -- kind of laid it all out made it very clear that it's not the business of fisa judges to pass on the intelligence value of anything that's being sought. that is the business of the attorney general and the head of the central intelligence or his or her delegates but not the fisa court. so all they have to do is certify that there's a substantial intelligence purpose and that issue is off the table. fisa judges are not permitted not permitted by the statute and by that ruling to look behind

the curtain and find out why you're looking for this information. >> but in the context of section 215 clearly at issue was this idea of what is relevant. the statute says you can collect records that are relevant to an investigation. and so that seems to me you know, it's not really about intelligence value as such, but it is interpreting a word that's used in many different laws. you know kind of across our system. so it's sort of a classic legal issue for the judiciary, right? >> there i suspect the judges in the court were the prisoners of the word -- of the use of the word relevance in issues like discovery. relevance is anything that's conceivably relevant we'll decide later if it's admissible but relevant is a whole big question. and relevance there's almost no limits to what is relevant.

that's all i can say about that. if there had been an adversary there might very well have been a different result. >> so that brings us right into usa freedom which we talked about a little bit this morning which is the bill that was passed through the house overwhelmingly a couple of weeks ago and is now potentially up for consideration by the senate later this week i guess on the 31st. so shortly. and one of the things that's in usa freedom is a provision that requires the fisa court to appoint a panel of people who could be called upon to serve as a public advocate at the court's discretion. what do you think? is that enough? does that add enough adversary yalty to the fisa court process to sort of bring it more into the norm of what we'd like to see? >> the short answer is no. of course i have a little bit of a longer answer.

it's predicated on the fact i'm shaking in my shoes at what judge robertson said about it not occurring to judges on the fisa court who had that ability in the initial period. because in usa freedom certainly there's a step in the right direction in terms of you know including an amicus or an advocate. but it needs to be made far, far stronger. the, i believe it currently stands that there are three kinds of amicus that can be offered, one to provide views on privacy and civil liberties, to provide logical views, or anything else. and this is discretionary which is very little different from what currently exists. so at the very least one aspect of making necessary strengthening changes would be

to require especially when there are novel issues before the court for there to be an amicus offering privacy and civil liberties views as well as technical and technological views. because we shouldn't be opening the door to something that's not those things coming before the court. but i think that even that is not enough. i think that there should be in addition to those viewpoints greater transparency with respect to the court's opinions and what those opinions are about and aimed at. and even so in their proposals for greater transparency that haven't yet been incorporated but even so i think that still isn't enough because it still isn't an adversarial process. and i think that that should be done far, far more. one of the obviously issues that

are coming up is you know putting an end to bulk programmatic surveillance. there's no doubt that is a very good thing. and we'll see how that debate ends up playing out, heaven help us. but i think what we've all got to take into account is that what is happening and however it happens has to be the start of a new level of national conversation on these sets of issues. and not the end of the conversation on this set of issues. and so the usa freedom still doesn't deal with all sorts of problems that exist with respect to notice in variety of other contexts. so i'm thinking about what judicial review requires and what an adversarial review requires. and just to lay out there some, you know fundamental problems that we still have to deal with. there are, i think, in civil courts at least in theory three

ways in which these surveyillance programs might end up being adjudicated. one is civil claims lawsuits brought by people who have been effected or impacted by these policies. the issues there still remain standing and state secrets need to be addressed. another way is in criminal cases where criminal defendants might be able to challenge surveillance authorities to which they have been subjected, the problem there is that right now notice is only being provided under section 702 as opposed to various other provisions under which these authorities are being conducted. and even when notice is provided the information that underlies the surveillance, the, you know, other information is not provided. the third way -- and so i think we've got to clean up those notice and other provisions. the third way in which these authorities may be challenged might be by communications providers who are in order to

provide this information there again i think we have issues in that communications providers don't have the same incentives as their customers. they're immunized from any violation of law. and they don't have the same direct privacy interest. plus if they were to raise challenges it would likely occur in the context and still therefore be subject to a significant amount of secrecy. so special advocate amicus provision's a real good thing. much more needs to be done far more needs to be strengthened. >> but everything you've talked about has really been within the context of the fisa court structure, right? >> uh-huh. >> so basically you're saying we need to img prove the fisa court to make it look more like a regular federal court, at least when we're talking about instances where the court is approving sort of large programs, right? so do we then need the fisa court? if we're spending all this time and energy trying to make it

look like a federal court when it's performing a certain kind of function, right? not the function that it was originally set up to perform, which is basically orders on surveillance on particular individuals, but these broad programs. so we're trying so hard to make the fisa court look like a regular federal court but wouldn't it also be possible to move that function or to put it in the federal courts? anybody? >> that's a very good question. that's a very good question. i wasn't present at the creation of the fisa court. some of the here were. but my understanding of it. my understanding of it was fundamentally because of the sensitivity of the intelligence process -- >> the sources and methods that were involved that led to this super secret operation that worked within skiffs and

certainly not transparent to anybody. in fact, i think probably for the first 20 years of the fisa court's existence its existence was barely known or understood. and nobody really knew who was on the fisa court. but if all they're doing is issuing warrants, that can be done -- i don't really know these days because we have plenty of secure facilities and plenty of secure communications and all article iii judges are deemed to be clearable. why that is i don't know, but we are. so you could theoretically move that warrant process into regular chambers of regular

judges judges. but the programmatic part of it absolutely should be done in a court that has an adversary process. now, i take issue with my learned colleague here on whether we need to have it required by law. i mean, what is a novel issue? do we know what a novel issue is? when would that require the convening of a court that has an adversary? i don't know. i think that the fisa judges have the requisite humility and respect for the process that they would invite panel participation. i have suggested on occasion, however, that it be required by statute that if -- schurttatute or rule, that if and to the extent they're dealing with these

programmatic things that they must have an adversary. and if -- i would suggest that if any fisa judge requested it the court would impanel three judges to consider a what one judge considers to be a novel question. and then you would have kind of a three-judge panel and the three judges would decide whether to invite an adversary in. so there are all kinds of ways to do it. >> uh-huh. >> but permanent agencies, permanent adversary agencies, no. a panel is fine -- is good enough for me. >> well pclob recommended a panel, but i do think the judges need more of a nudge to get them to appoint outside parties special advocates to represent the interest of citizens and privacy and civil liberties. there is a process in the court on rule 11 and not the civil rule 11 for sanctions but the fisa rule 11 where the government indicates that

there's a matter of unusual technology or raises unusual legal issues. and i think that could be an appropriate trigger for the fisa judge to call in outside party to that represent the other side. and that may be a program or it may be a new collection technique of where it would be beneficial the first-time ruling on it to have an adversary to raise views. and what we called for is actually having the judges report on how often they appoint an advocate so they can be held accountable. because certainly we don't want to create the structure of an advocate and have them use the benefit of that advocate and having two proceedings. i also want to mention i think there's another category for the fisa court to play aside from programmatic approval and warrants, which is that carrying out the program where i think the fisa court can play an important role for instance in the 215 program even once the program's been approved under the current rules the judges of the court have to approve each

215 request to determine if there's reasonable arcticty tickable decision. to understand the dynamics of what the terrorist organizations and how this particular quest fits in. i think that's one example where the fisa court could play a role and not defer to the federal ju dish rareyar in general. another the program where the court approves the program and hands off pretty much other than once a year renewal and one thing pclob suggested and what will happen is the court be provided a sample of targets under 702 and a sample of queries done by 702 databases to give the court a chance to oversee the program. not just to approve it initially but make sure the program is operating consistently to the statute. i think greater transparency would be extremely helpful and i think we might not have had the 215 process if the court had

been publishing opinions for the public to see. again, our board has recommended going forward as the fisa judges write their opinions in a way they can anticipate them being declassified so we have a classified section as perhaps the facts of the case. >> they're not smart enough to do that. >> well -- >> because somebody's always going to say, you can't we're going to take that sentence out. >> well, at least maybe start and the government can do the declassification review. >> do you want to respond? >> a small point which is i think part of the reason we're having the conversation about what is the best means to fix an imperfect means is because even though under usa freedom you know, certain forms of bulk surveillance will be prohibited. other kinds of bulky information gathering will go on. so we still have the need for you know, special advocate and strengthened form because we are

not at the point where the court is only fulfilling the purpose for which it was initially established. that's again why i think we are just at the start of a conversation and certainly not at the end of it in terms of the magnitude of the reforms that are necessary. >> so let me ask you a question that came up in the earlier -- in the morning discussion chrks, which is this idea of having these very complex programs and technologies. how do courts grapple with that? david, you guys have been delving deep into some of these programs which you know must make your head hurt when you try and figure out what they're doing. and certainly some of the fisa court decisions that have come out. we've seen the court really kind of getting deep into these very complicated issues. so is our system sort of equipped to deal with that? and are there ways in which we can make it stronger? i'm thinking also of the judiciary over here.

>> i'll start with our board. we have the advantage we can spend a lot of time doing a very deep dive into how these programs operate. we get briefings from the agencies to review agency documents. we meet with congressional oversight committees with advocates, with academics. and really can gather information from a variety of sources, which allows us to do a legal constitutional and policy analysis. i think that's harder for the court that has a more restrictive set of rules of evidence and what's appropriate for its communications. and of course the court's focus is narrower. we can look at the policy determinations, the court is looking at the legal and constitutional issues. >> you've seen some of the fisa court opinions that have come out and you see for example going through ncts and back down to a level of detail. is there any value in having a sort of independent technological component to sort of advise the court, for example? because, you know --

>> well i mean -- by the way, the government does advise the court court. it has been suggested by the way if there were an adversary process here that in some way the government would be less forthcoming in what it told the court. i am actually shocked by that argument. i don't accept it. i think it sort of -- judges would say we won't hear that argument. i don't believe it. and if it were true it would be sanctionable and worse if any government agency were caught being less than forthcoming with a fisa court because there's an adversary present. i can't really accept that argument. but as to whether there should

be a special agency to advise the court well they have a staff. they are being advised by the government. that's what an adversary is for. the fisa court is not an administrative agency. it's not the pclob. and judges are not administerive agencies. they listen to what you say and you say and decide. and for them to -- for judges to review all the bells and whistles and say that's okay, that's okay that's okay without an adversary there is just not -- sorry, i'm johnny one-note here. it's not what judges do. what judges should do. >> but that's of course what the fisa court has been doing, right? >> yes. >> looking at section 215 and 702 programs the fisa court is saying, yeah, kind of broadly speaking this is okay and you've

got these procedures over here and those look kind of okay. some of what you're suggesting david, is this kind of ongoing oversight function which you, judge robertson, objected to at the very beginning right? so you want to have somebody kind of looking over the intelligence agency's shoulder in a sense and making sure they are actually complying with the rules that the court has set out. and you're saying that that's just not a judicial function. so how do we square that circle? >> that's what congress is for. >> right. >> anybody here from congress? fix it. >> i guess i would say that i think the judiciary for better worse is approving these programs and because they're approving them as being both legal and constitutional, i think they have a duty to oversee the programs as a compliance matter. sometimes judges oversee consent decrees and i think in this case they could do that. judge wald and i recommended in the 702 report that there's something called min my eded eded

minimization. >> minimal minny mization. >> yes. that's part of the constitutionality effort to minimize efforts. one thing judge wald and i called for is for the fisa court to appoint a special master. >> uh-huh. >> and have the special master review the government's mini minimization efforts and if they fall short have the courtapprove, so i think that's a role the court can be actively involved in overseeing the program and making sure it's operating properly. that's the quid pro quo to make sure it continues to operate as well. by the way less forthcoming argument i couldn't agree more. the outside council will be cleared, appropriate security level and the government should trust them as much as it trusts anybody with shareing classified information. if there's parts of the program they're not comfortable talking about, i agree then the program

should not be approved on that basis. >> i think this entire decision's taking me back to i think the place that we started out and where we keep coming back to, which is the importance of an adversarial process. because remember when it was first revealed that there was this metadata program and there were many claims by government officials talking about how actually this is not content metadata isn't so bad until there's more and more information that comes out from technological experts including you know, the expert we had in our aclu versus clapper case. felton, who the judges found very persuasive talking about how much information metadata actually reveals. in fact, as much if not more content sometimes about your most personal associations and information.

and i think that you know, when we think about government collection information especially mass collection which technology has now permitted, we have to keep in mind what the first and fourth amendment is which is a judgment that we do not trust the government to have that much information without real checks and safeguards right? and one of those checks and safeguards as technology grows leaps and bounds, is to have technological knowledge to be able for judges and others to understand exactly what it is that they are approving which is something you can do more through ap adversarial process and not as much when you have only government's experts talking about what the privacy and civil liberties implications on certain kinds of technology are.

i think over the last couple of decades or so we've had a revolution in what the government can collect and how it goes about collecting it and the challenges that that raises for regulation both congressional and i hesitate to say judicial review, not judicial regulation in that way. i worry that the kinds of debates we're having now may in 20 more years seem quaint because technology is going to continue to expand. and we need the kinds of knowledge to be able to make sure that the laws and safeguards and our constitutional rights are safeguarded in the same way. or we're going to be having these same kinds of conversations. >> pclob recommended the fisa court take advantage of technology. the government sometimes provides technological advice but the court could get its own.

we've been hiring experts both internally but to help us understand programs where the collection technology data analysis have become extraordinarily sophisticated and it's important to have lawyers and technologists take a look at that. >> so i think this sort of brings me to my last question before we open it up for questions, which is i was getting ready for this discussion today and i was looking at this speech justice brennan gave back in 1987, which i've had on my desk for many months. one of the things justice brennan argues and he says and i think everyone can agree that the united states sort of traditionally downgrades civil rights in the time of crisis. we've sort of seen that happening cyclicly across the last century or whatever. but he says that because of this cyclical nature where we sort of -- the pendulum swings one way and then swings back and back and forth, we haven't actually developed a very robust

way of dealing with civil rights concerns during times of crisis. and one of the things that occurred to me is that we are now in this world where we have this war on terror the global war on terror last i checked which has been characterized by many people as a forever-war right? this is a war or at least a struggle that's going to go on for a long period of time. and so how does that actually then impact this dynamic? how does that impact the permanent -- this sort of pendulum swinging back and forth? because every time we think we sort of gotten beyond you know one terrorist group there sprouts another one we're concerned about. you sort of dealt with al qaeda osama bin laden's dead, who knows how, and now you have isis. you know probably you know three or four years from now there will be somebody else. so you will be in this sort of constant state of lower level emergency certainly than the world wars or something like vietnam, but is that going to strengthen our civil liberties

jurisprudence? or is it going to mean a sort of constant degrading of those protections over a long period of time? and i think it's interesting an institution like pclob can kind of play an interesting role when you're looking at a longer stretch of lower level security problem. >> i think -- hopefully the judiciary sits in the middle of that pendulum and is a check on both sides. and professor georgetown has written an article suggesting that in times of national crisis the judiciary can play that role. we certainly have seen cases in the supreme court on enemy combatants, on military commissions on habeas corpus. and even going back to the steel sieger case where the court has played a more centerist role and focus on concerns. one would hope in the political process where things may sway further that the court would be focused on the constitution and

not bes a i suede. internal optimist. the second case is encouraging that we're in the middle of fighting terrorists, but the court said this is a program that's illegal. and the 215 program, and should be stopped. gep, i hope our board also can play a role where independent we don't have to clear our views with the white house and office of management and budget. we're bipartisan. we have three democrats, two republicans. so i hope we can also try to be very fact based and do clearer strict legal analysis and be transparent about our thinking as well. >> let me push you on that a little bit too. the pcl areob has split, right? on some issues you haven't managed to get consensus amongst your five-person board. how does that -- doesn't that just kind of reflect the same kind of tensions that we see? >> i think there are challenges, but we've certainly been

transparent about our board's views. as i look around town i don't see the supreme court being unanimous every time. >> there is that. >> so i don't think it's surprising that you invite five people to come in and bring dimpt perspectives they may see things differently. i think being unanimous sometimes being the least common denominator and maybe more important to show our differing views and our analysis to inform the public debate. and again it's encouraging we recommended the end of the book collection for majority. the president adopted it right away. the second circuit adopted it. and perhaps on sunday the congress may adopt it. >> perhaps. judge robertson, what do you think? i mean as a judge having sort of seen these national security pendulum swings, right? i mean does the fact that we have this like long running thing, is that going to make a difference to how we think? >> yeah i think it's going to make a big difference. the suggestion is if the judges -- the judiciary doesn't swing as far as the pendulum

swings, it's probably right. because we're all americans and we all swing with the pendulum a little bit whether we think we're doing it or not. justice brennan was absolutely right that judges tend to sort of think about fly the flag in their head and get all patriotic and there's danger out there and we have to be aware of danger and so forth, but the longer this war on terror goes on the more sort of immune we're all getting to these alarms that are being sent out all the time. and i really think that we're getting into kind of a steady state situation where everybody's worried about national security all the time. but it's not driving us nuts. and i think the judiciary's going to continue to do what the second circuit did. and is going to find the bottom of the pendulum swing and begin

to deal with these national security cases without being stampeded by terrorist concerns. >> are you as optimistic? >> i'd like to be. and in some ways i am. i think that there are causes for optimism. one of the things justice brennan said in that speech was part of the cyclical nature is that, you know once you come out of the emergency, the country remorsefully regretfully realizes that the ab ri gags of civil liberties was unnecessary. and perhaps we are getting somewhere to that point. i think about you know recent polling we did in which majority of americans thought more constraints needed to be placed on surveillance authority. think about the fact that it may

very well be that section 215 sun sets as a result of where we are. that kind of thing was something advocates have long sought but seemed unfortunately far off. where i'm a little bit less optimistic and more concerned is the claim of war-based authority. >> uh-huh. >> during previous wars we largely understood when wars would come to an end. we had more defined enemies. and here at this point we have very little notion based on how the executive and congress going along with the executive in many ways have defined who the enemy is and how wars might actually come to an end. and there are claims of war-based authority to use lethal force and to detain far from any traditional battlefield. and those authorities have not

yet been subjected to the kind of scrutiny that i think courts may be more and more open to. i'm reminded here of justice o'connor's plurality where she talked about how the understanding that informed the court's decision to say that the detention of an enemy combatant was lawful albeit subject to review. that detention authority might come to an end if traditional notions of war unravelled. and i think we may be getting to a point where courts are looking to those traditional notions a lot more searchingly perhaps even skeptically. you know, i'm thinking of decisions that have started percolating in the domestic context with respect to domestic authority. surveillance being one with respect to americans.

but also with watch listing which for example has been one of the significant increases post 9/11. and last year a federal judge ruled for the first time that the government's redress process for providing redress to people who sought to challenge their blacklisting status on the no-fly list was unconstitutional. and that the government's policy of refusing to confirm or deny that people actually were on the list, could not stand despite government's claims of extreme national security harm occurring if that were to be -- if that were to happen. which it hasn't. and so i think that there is some real hope and some room for hope. i certainly hope so. i feel like i'm in the business of hope. but i think that there is a lot of room for great caution because a lot of the claims of authority and extreme authority

continue. >> okay. well, i'm sure there are folks in the audience who have some questions. hands are going up. please. could you please introduce yourself when you ask your question? >> hi. tim, concerned citizen. >> we like that. >> i have two related questions and an observation and i'll try to be very brief. it seems to me that none of the oversight mechanisms or review mechanisms we've talked about during this panel deal with the problem mike german was talking about earlier in the day with respect to the outsourcing of any of the intelligence function to third parties, and particular data brokers. i'm wondering if the panel could talk about where if at all one would go to get oversight or review of the outsourcing or privatization of that function within the national security apparatus? and then a related question which is if you look at the

statute that underlies the authority for the pclob, it's actually quite limited as to the remit of the pclob. so my question along with those lines is in relation should the remit of the pclob be broadened or do we need perhaps multiple pclobs given the breadth of programs out there that may in fact need some second eyes on them? thank you. >> pclob's jurisdiction is limited to federal counterterrorism programs. we certainly have had plenty to keep us busy in our two years of existence so far. there is legislation pending that would expand the board's jurisdiction to foreign intelligence and not counterterrorism. we haven't taken a position on that, but there are at least people in congress who seem to be thinking along the same lines. my view on the outsourcing question from pclob's point of view is if it's a federal counterterrorism program carried out through contractors, i don't

see why it would not fall under our oversight jurisdiction. >> i have no view on the outsourcing question. but as to the where the writ of pclob runs, i suggested at that first meeting that the chairman was talking about that actually pclob should be the adversary in the fisa court and pclob said oh no. >> i should say in part because we do have another function besides oversight which is advice. where we give agencies advice as they develop new programs, new laws and regulations. and we hope that this will help them get it right at the beginning and not have to be criticized later on. but it would put pclob in a challenging situation to have advise about the creation of a program and then challenge that same program in court. that was at least i think part of the motivation why we prefer to have outside lawyers serve as adversaries. although i guess that usa freedom act has the court consulting with pclob in determining which outside council to choose and to put on

the list. >> do you want to talk a bit about that for a second? >> i think it is a pressing issue and absolutely needs to be dealt with in multiple ways. the ways that it has come upmost prominently, i think as you probably know tim, has been in the context of outsourcing to military contractors in war zones where abuses have occurred and lawsuits have been brought. and there's been some but certainly not enough accountability in those context but i think that with respect to intelligence outsourcing in the same way absolutely far, far more needs to be done. >> liza from the brennan center. you talked about the barriers that standing and the state secrets privilege pose to review in regular federal courts of a lot of these surveillance programs and intelligence programs. first of all, i'm just wondering whether all of you agree that that is in fact a problem that needs to be solved and not just serve an unfortunate feature of our courts they can't decide

these cases? and if that's true, where does the solution lie? is it in the judiciary? the judiciary needs to rethink its position on these questions? or is it legislative? should congress be legislating on state secrets and on standing? what is the solution? >> burt already has his hands up. >> yep, please. and then he can maybe weigh in as well. >> so i think with respect -- let me just start with standing. i think that you know in regular cases where you're required to show an actual or imminent injury, in fact it isn't the case that generally you have to show the injury has absolutely occurred right? and in the surveillance context, however especially after

clapper, there's been far more of a stringent requirement of showing that the injury has happened and has occurred already as opposed to for example what we argued in that context which is that it was absolutely likely that it would occur in the imminent future and that reasonable efforts had been taken to mitigate that injury. for example -- >> you're talking about the first clapper -- >> sorry. amnesty lawsuit. that didn't persuade the supreme court on standing grounds, i should add. but that you know, reasonable efforts had been taken through expenditure on encryption or travel by lawyers and journalists and human rights activists and others who were going to be subjected to that surveillance. and of course it turns out that, you know, a few months later that the snowden disclosure showed that in fact that was a reasonable expectation. so one way i think to do it

would be for courts not to impose a special standing rule in the surveillance context especially given a context in which the circular logic of two administrations has been that in order to challenge you have to know that you have been surveilled and show that you've been surveilled but we're going to hide and not tell you whether or not you've been surveilled so therefore you cannot challenge. so there's potential congressional fixes that could be made. steve latic has a very interesting article on secrecy and surveillance talking about how congress could legislate the kind of injury that could be shown given the kinds of programs that exist. and so i think there are real fixes because there are real hurdles. standing is a real hurdle. it has been until very lately the hurdle that has kept these cases from being heard on the merits. similarly with state secrets.

you know, one change obama administration was the internal guidelines that attorney general holder established that raised the threshold of when the administration -- reported to raise the threshold of when the administration would invoke state secrets. i come to think of those guidelines as the albeit reluctantly standard. because the difference it seems to me has been we're going to invoke state secrets albeit reluctantly. and that state secrets have been invoked as much if not more including very recently in a very new context. and i'll just throw this out very quickly, the rest versus ulani case a private defamation lawsuit brought by a businessman against an advocacy group that sought greater sanctions against iran. and in this absolutely private lawsuit the government

intervened as a third party to seek dismissal of the lawsuit on state secrets ground. now, state secrets has been invoked to throw out lawsuits based on torture warrantless wiretapping, racial discrimination. but at least in those contexts we the american public had some idea of what the government's interest was at stake. in this case we have absolutely no idea of why the government would seek to have a suit between private parties dismissed. so the albeit reluctantly standard has taken on new levels very recently. and there has been not so strong now, but there have been movements for legislative reform of the state secrets privilege. and maybe i ask burt to address that. because it hasn't gone as far as it should and it's necessary. >> well, why don't we get comments from our panelists and then we're going to ask burt to maybe talk about that.

did you want to respond to the question? >> state secrets, do you think that's a problem? >> well, district judges are modest people that have much to be modest about. they don't understand standing just as chief judge michelle will tell you they don't understand patent cases either. and with all due respect to you, david, i'm sorry pat wald isn't here because she could explain standing to you. because she sits on a court that talks about standing. we in the district court are taking blind guesses about what standing is. if i can digress for ten seconds, i will tell you that now in my private sector life doing a lot of mediation and arbitration and i realized when i started doing it that guess what? i didn't have to jump through all the hurdles that district judges have to jump through, jurisdiction venue and standing and justice ability and

rightness and on and on before you ever get to the merits. you parachute into the merits, solve the problem, go home. that's the way courts ought to work, but they don't. and standing is a very, very complex, difficult and i'm sorry to say necessary concept. but i don't think you can legislate standing out of the woods and say, well if anybody is upset about what the government is doing, they can come to court and challenge it. that's a recipe for disaster in the courts. we have millions of suits of people that don't like what the government -- >> the question is a more precise one. this goes back to the lard case where it was decided that the chilling ervegtffect of surveillance is not a sufficient harm for you to have standing to sue the government in a surveillance program. so in that sort of limited context you might have a legislative fix that says -- that recognizes that as a

cognizable harm which would perhaps solve the issue that we've had of this sort of circumstance lairty on the surveillance issue. >> i think that's a problem the circumstance lairty on the surveillance issue. >> i think the fact that the phone records are being kept by the government chills their first amendment rights. they're less willing to associate with each other, knowing that the government is monitoring them. that's going to talk to the press, to speak, to associate with the religious organizations, so i think relaxing the view of what is sufficient to create standing is something that can be done legislatively or judiciarily. but it would benefit the courts to wrestle with these programs. >> i know you have something to say on these issues. >> actually, i had a comment and a question about earlier issues but on state secrets as i said this morning the house judiciary and the senate passed state secret legislation and the only

thing i would add is that attorney general mukasey and then the obama administration after more of an internal debate opposed anything but a real weak law. general mukasey emphasized the supreme court case in which he quoted them as stressing that the supreme court had always held court should be extremely deferential to the branch on national security and we pointed out that he left off the end of the sentence, comma, except when congress expressly provides otherwise, which was from the justice department brief in that case. but i wanted to go back to just two points. and raise a question. i shared david's optimism about the courts. i have been involved for 50 years, closely in judicial confirmations. and i think there are two things that bend the judiciary's arc

toward skepticism. one, the older generation of judges from world war ii who saluted the commander in chief they have left the bench and secondly, all the revelations from the pentagon papers watergate, iran/contra, so forth, have made judges much more skeptical. there was a deflection from that path as the conservatives got a lot of young, very conservative courts of appeals judges. but now as the far right if you will is joining the left on civil liberties issues i think that path towards more skepticism by judges also they have become more comfortable dealing in article 3 courts with very classified information. so i think that arc is bending the right way. but my question goes back to the

issue about the fiske and changes in it. if you distinguish between special masters which pat wald made good use of on foia cases when she was on the court and she was the best witness on state secrets by the way. if you distinguish that which judges on the fiske i assume have been able to do from the idea of a counterweight, whatever you call it. i was wondering where you would draw the line. because this morning it was pointed out the original concept was sort of a magistrate on warrants but that's ex parte. you don't have an adversarial procedure. so i would hope with one is appointed. where do you draw the line in terms of when you either should mandate or strongly nudge

towards an adversarial proceeding and where it really is closer to the traditional under the fourth amendment ex parte warrant proceeding? >> so i'll ask you to answer that question, but also to sort of maybe talk a little bit and i think you alluded to this issue which is, you know in a warrant proceeding you do in many cases have a criminal proceeding to challenge subsequently and what are the differences between that sort of normal criminal model and what we see in the fisa context and maybe would you like to start us off? >> well, i'm not sure quite where to intersect with all those -- with that thinking. if we're talking about special masters, i mean, i don't see any anyany utility of a special master in even the complex warrant situation. because this warrant thing moves fast. it's -- it's not something that you -- you don't issue a warrant, you don't apply for a

parent that you're going to use in six months. you want it yesterday and the warrant application process takes i think a few days before warrants are issued. and there really isn't scope for magistrates and special masters and extensive investigations. on the problematic side, however, absolutely we should -- there should be some sort of help given. but in my view it should come from the adversary, not an ex parte magistrate. >> i meant two different things. the adversary talking about the constitutional issues, civil lint issues. the master as an expert in i.t. or intelligence intricacies as a separate -- it's a separate kind of assistance to the courts. so pat wald appointed a special master in a foi case who had

been in the intelligence area. and he was able to whittle the government's objections from 80 down to three or something. so that i was talking about, just the expertise, not the kind of arguments that an adversary would make. >> well, maybe that'll work. maybe it would work. i mean, i don't know if it's -- if it has been or is being tried tried. it would be -- it would be sort of if you can use this word, it would be sort of a creative thing for a judge to do, to reach out to get a special master to talk about the details of i.t. but i don't reject it. i just -- i just rather would have the adversary hire the expert and have the expert teach you. >> as i mentioned earlier judge wald and i made the recommendation drawing on her

foia experience with the special master, the review of minization of the government. and the government would look to see if they were properly redacted or they were destroyed. but that would be an appropriate thing for a master to look at the random sample and then report to the judge and then the judge could issue relief if necessary. >> where do you draw the line on adversary? between a specific warrant and the larger issue? >> our board's recommendation was on matters involving novel legal or technical issues. >> that's where you would have a special advocate and then you envision the special master is part of the on going kind of compliance review function, right? >> exactly. >> did you want to add something? >> a couple of small points that your question raises, which is under the original conception of the fiske and how it was objectified. it was analogized to the warrant requirement. which of course is far from what

has subsequently happened. but even in that context in the criminal context there is the idea that should there be a challenge it would be brought later on. and that kind of challenge is not visaged here. i think i would be remiss if i didn't mention the second part of this which is the parallel construction problem which is when information obtained through these authorities is provided and disseminated and then the government constructs a case and so notice doesn't have to be provided or the surveillance authorities haven't been relied on so the constitutional issue cannot be raised. i think the final point worth remembering is for how long that notice didn't happen. so when in the amnesty international case, the supreme court said who would ever have standing to bring a challenge to these authorities the solicitor general said a criminal defender

against whom these are concretely used in court. and apparently what the solicitor general didn't know is that the division policy was not to provide notice to criminal defendants. now, we had notice provided in some cases. some plead out, government isn't providing the warrant based information but that's a fix that needs to happen. >> so i think fritz you get the last question. >> well, i have one comment and one question. the comment is going back to your original question about whether the fisa court has been a rubber stamp. if you just confine the issue to its warrant function which is -- which was its own legitimate function as we conceived it i don't know what back and forth there is in the proceedings in front of the court, but clearly the government isn't even seeking warrants of the kind the church committee exposed. eleanor roosevelt, the southern christian leadership conference, the american society and supreme

court justices. they're not seeking those warrants and hopefully, they're not wiretapping those people. so it's a little unfair to call it a rubber stamp just because they approve at the end of the day most things that do come before them. now the question is, judge robertson, you said you thought -- i think you said you thought the reason counters are reluctant -- have been reluctant, pat wald said extraordinarily deferential in foia cases where national security is claimed and in state secret cases is because they felt they weren't expert. but courts handle all the time questions where they don't start out as being an expert on this subject. i thought it's more -- it's because they're afraid of being