cite figures that are really consistent with the united nations commission. why did you reject -- if it's so consistent, why do you reject the united nations commission inquiry? second, you cite improvement by both israel and the palestinian authority. could you share with us some of those improvements? thank you, sir. >> for those details i would refer you to the report on the commission inquiry. during the conflict we made clear from this podium, the secretary and others, that we supported israel's rights of self-defense. at the same time we were deeply concerned about the welfare of civilians and urged all parties to do all they could to protect civilians, particularly given the high civilian death toll in gaza. now, with that said, it is important to look back. it is important to understand

what happened, to learn the lessons, to apply those lessons. it's also important to do it in balanced way. it's no secret that we have long felt that that balanced approach has not been a hallmark of the human rights council's approach to israel. so our concerns about the report and the process we've made clear for that reason. thanks. >> you mentioned venezuela as a country that you highlight in the report. could you go over the specifics? >> i mentioned venezuela, first of all, in the context of corruption and i think that is deliberate. everything we say is deliberate but the reason i mention that is that we often hear from the government of venezuela very strong propaganda directed to the united states and american

interference and blaming the united states for problems in the country, and yet we have also found that not only are there very high levels of corruption in venezuela but they often involve people who are part of the government, supporters of the government, and then enjoying the proceeds of their corruption in the united states. that's one reason why we took action earlier this year in opposing a visa ban not just against human rights violators but against those responsible for high level official acts of corruption in venezuela. >> thank you. yesterday at the end of the strategic economic dialogue, chinese officials with regard to the ngo loss said it was a matter of strengthen rule of law within china and that they had done it with consultation with other countries that essentially there's nothing to worry about. i guess i'm wondering when you raise the concerns that you just

mentioned to us, to chinese officials, do you feel there's any kind of -- do you feel they're being receptive at all to it, or do you feel like you're repeating the same thing over and over again and it's falling on deaf ears? >> we'll see. in my diplomatic career, i don't think i've ever had a meeting in which people on the other side respond to a brilliant point that i've made by saying you know, you're right and we're wrong and we'll change what we're doing. i think the chinese side received a very, very strong and unified message not just from me or the secretary of state but from people from every agency the dangers of this ngo law. the reason why it was a unified message was that this affects everybody who does business in china. it potentially affects foundations. it potentially affects businesses. it potentially affects cultural exchange student and

educational exchange, in addition to people who are working on issues like rule of law and human rights. whatever china does i think it is going to find that moving in this direction will result in a very concerted and unified hush from quarters that it doesn't -- that isn't necessarily used to hearing from. so we will see what happens. we're very concerned about the implications of it and about the rhetoric of fear of cultural infiltration that the chinese government is using to justify this law domestically and what that says about china's future development. >> thank you for doing this briefing. two things, you mentioned at the top of the briefing that this is the most read document that the state department issues. could you give us the numbers, quantify that somehow? secondly, in the section on

iran, i noticed that you don't refer to any american citizens by name. you just call them dual citizens. i'm wondering why that is. >> on the first one, i'll have to get you the numbers. i don't know them off the top of my head. it has long been so and it continues to be the most widely read document. on the dual citizens, we generally -- and there's not an absolute rule on this but we generally don't mention american citizens by name when we mention them in this report. we followed this year the same practice with respect to amir he can maddie we followed the same practice last year with the exception of jason's case. in the sense that we describe them, it's absolutely clear that these are the cases that we describe but we didn't name them. i think one reason for that is that the report cannot be a

comprehensive listing of individuals who are detained around the world under these circumstances. what we try to do is to use the stories of the cases to illustrate larger human rights problems. so that really is the main point of naming them in the first place, to talk about the pattern in iran or others in other countries of detaining people unjustly for reporting stories or the peaceful exercise of their opinions. >> concerning the human rights situation in north korea, what is the united states' destination for the improvement of human rights in north korea period? >> what is our -- >> destination. >> destination? >> yes. >> our destination still appears quite far off. our destination is that the people of north korea should enjoy the same rights and

freedoms of the people of south korea and the people of every country in the world who are able to speak their minds and elect their leaders and to travel where they want and not to be for goodness sakes, placed in labor camps because of something they've said or thought or because of who their relatives are. now, that, as i mentioned, destination, seems very difficult to achieve but i think it is very, very interesting that in the last several years we have seen inside north korea far greater awareness among the population of what their rights are and of how people outside of north korea live. what has sustained this regime over many many years has been been its ability to deny people that knowledge. its ability to do that has eroded over the years and we are doing everything we can to try

to get knowledge and information to the people of north korea so that this trend continues. i think one lesson we've learned from changes in many other countries is that change takes time, but when it comes, it often surprises us. and it goes very quickly. i think the day will come when we see that happen in north korea. >> do you this i that north korean leader kim jong-il will bring that? >> i think it's under more pressure than it has been at any point in its history and that's partly, frankly, because of the efforts of this administration and our allies and partners in japan and south korea and all over the world to support this commission of inquiry and its recommendations and to bring this issue to greater public attention. it's interesting how the north koreans have responded. people used to think they didn't

care what we think about their human rights record. that is clearly not true. >> thank you, assistant secretary and thanks to secretary kerry for this report. i'm fra bangladesh. do you think the human rights situation in bangladesh is sat is actry? >> since the one-year anniversary of the 2014 elections in bangladesh we have been in regular contact with political leaders, with civil society, to urge a peaceful resolution to the political impasse there, to end the violence that has disrupted daily life and killed and wounded innocent victims. we've condemned in very strong terms the use of violence for political objectives but also

emphasized the government's responsibility to allow peaceful political activity and to use appropriate levels of force in dealing with threats to law and order. >> the secretary mentioned countries that the u.s. is friendly with might have a problem with the support, but i'm just wondering on the opposite of that. when you look at a country like egypt, clearly the death sentence of mohammed morsi and some other things that you have had problems with happened this year, but clearly last year there was a massive crackdown on not just people who had committed crimes but also just in general members of the muslim brotherhood and there's been a criticism that the u.s. has not been as forceful as it could be because of its important relationship with the new cc government. i'm wondering if you look back on the last year you had some

problems in bahrain, clearly egypt is another issue where you have a close ally and i'm wondering if you could reflect on the past year and whether these political important national security relations make it difficult for you to be able to advance human rights in the way that a human rights defender such as yourself looks at these issues. >> these are difficult issues and they require difficult choices. if it was easy i wouldn't be interested in having this job. it would be really boring. even people who are deeply committed to the defense of human rights around the world often disagree about the best way to do it. as you mentioned, i've been here for a year now, and i've been in all the discussions and conversations and involved in virtually all the decisions that we've made on those issues.

i can tell you that the objective of defending human rights, the objectives that the secretary just spoke about have been front and center in everything that we have tried to do. look at how we launched our campaign against isil by first and foremost seeking a more inclusive government in iraq and then launching an effort to protect the ya zeety people from a potential genocide. look at how we've leveraged tpp to try to get improvements in labor rights in vietnam or how we used the cuba opening in the way that i've just discussed or prioritize the democratic transition in sri lanka before engaging there. time and time again i think we have made decisions with that objective in mind, often getting

results, including some of the ones that i mentioned and then sometimes it's very difficult because this is not the only interest that we have in the world. it is an interest. it is intimately related to our national security and our prosperity but it is not the only one. it would be childish and unrealistic to suggest that it can be or should be the only one. with respect to egypt and bahrain, two countries that are in turmoil where we have very important interest in partnering with governments in the fight against terrorism. among other things, we have kept this issue front and center. we have not gone back to exactly the same military relationship that we had with egypt before all this started. we encouraged as you know, very strongly the release of mohammed sultan and we're very happy to see that happen and we will continue to press for the release of all the other

activists, nonviolent opposition figures who remain in prison. >> thanks everybody. we're going to have to call it there. thank you very much. >> thank you, everyone. u.s. employers added 223,000 jobs in june and the unemployment rate fell 5.3% a 7-year low. but wages failed to budge and other barometers of the job market paint a mixed picture. the rate fell mostly because many people out of work gave up on their job as much as and were no longer countdown as unemployed. former texas governor rick perry will lay out his economic plan for the country at a national press club luncheon today. he's running for the republican presidential nomination p and how to fight what he calls the cycle of hopelessness and lost

opportunity that so many americans feel trapped in. c-span will have live coverage at 1:00 eastern. president obama is traveling to wisconsin today to propose a labor department rule that would make more than 5 million workers eligible for overtime. the plan announced monday would raise the earnings threshold under which salary workers are entitled to overtime. you can see the president's comments live at 2:30 eastern also on c-span. tonight on american history tv and primetime, the declaration of independence and the national archives work to preserve the original document. participants include the arc invest of the u.s., the national archives director, educator of the thomas payne papers james mcclure and seth caller, a collector and broker of documents. that's tonight here on c-span 3 on american history tv in primetime. the c-span city store is traveling across the united

states. join us and cox communications this weekend as we learn about the history and literary life of omaha, nebraska where the depour es club was one of the first groups fighting for racial equality. >> omaha had a reputation that as a city when you came in, if you were black, you needed to keep your head down and be aware that you weren't going to be served in restaurants, stay in hotels. when the depour es club began their operation, the idea and in fact the term civil rights -- they used the term social justice because civil rights wasn't part of the national lexicon at that time. the idea of civil rights was so far removed from the idea of the greater community of omaha or the united states, that they were kind of operating in a vacuum. i always like to say that they were operating without a net. there were not those support groups. there were not the prior experiences of other groups to

challenge racial discrimination. >> we look back to the union pacific and how the construction of union station helped omaha's economy. >> union pacific is one of the premiere railroad companies of america. it was founded in 1862 with the pacific railway act signed into law by abraham lincoln. it combined several railroad companies to make union pacific and then they were charged with building the railroad that would connect the east and west coast. they started here moving west and central pacific started on the west coast and was moving east. they met up in utah. that's really what propels us even further. we become that point of moving west, one of the gateways to the west. >> see all of our programs from omaha saturday at noon eastern on c-span 2 aes book tv and

sunday on american history tv on c-span 3. a discussion now on current oversight of the intelligence agencies and what lies ahead for the future. the brennan center for justice held a symposium in washington which included former congressional staffers who worked on intelligence oversight for lawmakers. this is about an hour and a half. >> welcome back everybody. i work at the centerbrennan center for justice. we have three wonderful speakers with us this afternoon as we turn from the issue of legislative oversight to the issue of judicial oversight intelligence activities and national security cases more broadly. our panel is actually really wonderful and i think we're going to hear a variety of views

and perspectives on this. to my left i have david mu dean. he's done many amazing things but most recently has been serving as the chair of the privacy and civil liberties oversight board which as many of you know serves a critical function in protecting privacy and civil liberties as we see more and more expanse sieve counter-terrorism programs in the post 9/11 world, in particular, they've issued two reports, one on section 215 of the patriot act and another on section 702 of the amendments act and is currently working on the big kahuna, the counter-terrorism programs under executive order 12003. to his left is the director of the national security project at the aclu and has litigated many national security cases as well as having been involved in a variety of projects to reform

intelligence laws. and finally, on the far left is judge robertson who served on the district of columbia district court and served for three years on the -- three years, right? >> yes. >> maybe you'll tell us about your service there and why you left as well. i'm hoping with these three panelists to get three very different perspectives on how judicial oversight works. david has graciously agreed to step in for judge wald who is unable to join us because of a family emergency. so, with that, i'm going to start and i'm going to start with you judge robertson. i'm going to start with a 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. the oversight idea is a little strange. 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. the search warrant process consumed the first 15 or 20 years of the fisa activities, was the bread and butter of what fisa was doing. it's only in later years -- we'll get to that point. if and to the extent we're talking about judicial oversight i have to say -- and i hope this doesn't sound cynical, but i have to say that the chief

strength of it is whatever public reassurance there is in finding that these unimpeachable -- almost unimpeachable black robed life tenured article three judges are deciding things. that should reassure people that there's no politics involved. even that is undercut by the whole -- by some of the suggestions that fisa court has been a rubber stamp that it's political. i deny both of those charges. we can spell that 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 biggest problem is where i began. the biggest problem is when fisa does oversight instead of

deciding between competing views of a case with an adversary in the case, it's not doing what judges are supposed to do. it's not deciding a case. it's doing something different. it's doing some policy oversight, and i don't think the judiciary should be doing that. >> let me ask you a question about this issue of the fisa court being a rubber stamp. a lot of that argument comes from the number of applications from the government that. fisa court has approved. 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's a back and forth process between the government and the fact that judges sort of get things right and that's why you see such a high rate of approval. my question really is is that back and forth process which is taking place entirely in secret and behind closed doors, does that give you any pause in terms

of thinking about the kind of role that the fisa court plays? >> well, i always distinguish the warrant issuance function from the program approval function which is where i part ways with what's been happening. but as with the warrant issuance function i wouldn't call it ministerial but it is not frankly, rocket science. the justice department people who help prepare the warrant applications, the fbi agents who do it the cia people who do it, all the people who are working on preparing warrant applications are fast tid yus careful, precise, and if they're not, they get sent back to do it right. so it is true there's some back and forth. but it isn't back and forth on real arguments about the law.

it's did you identify this person properly, do we know what reliance you have on this particular informant and why. have you properly described probable cause. that's all warrant application stuff and it's not -- i would not put an adversary in the room for the issuance of warrants anymore than i would the issue 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 of intelligence operations and national security cases, is the strength the federal judiciary and what do you identify as differences? >> it's always good to start with agreements with a former

judge, and yes, i agree that it's a strength obviously. it's part of a system of checks and balances and i think that that has been demonstrated in this particular surveillance context by the second aclu versus 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, that have been criticized as unlawful and overbroad. conducted at really meticulous and comprehensive analysis before finding that in fact the call records program was unlawful. and that is, i think, undoubtedly a strength. it's a strength of our system. it's a strength of checks and balances. the problem is that with respect to national security policies and intelligence agencies generally, this kind of decision is the exception and certainly

not the rule. and i think that's a problem in a period of time i've been 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 appellant process where it can correct decisions -- >> you mean the fisa court or generally? >> the fisa court -- although we can talk later about how fisa courts can do that, but i think they are not equipped to handle qualified issues, and getting staff with materials and it's a challenge to the courts. i think the courts have shown 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 operations around this 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 cap 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 -- >> i give kudos to pclob because they deserve it. >> 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 judges 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 amicus. 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 surveillance 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 about be able to challenge where 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 gentlemen 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. 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 -- statute 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 a reasonable and articulatable suspicion. 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 judiciary 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 do agree obviously that greater transparency would be extremely helpful here, 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, 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

advise the court, for example? because, you know -- >> well, i mean -- by the way, the government does advise the 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. it's not 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

>> you men there's a minimal minute maization? >> 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 minimization efforts and if they fall short have the court oversee an approve, 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 sharing 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. or have the advocate provide that advice. 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 have 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 be 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 pclob 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 their different 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 one of the things that 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 sunsets 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 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 between the bush and 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 interests 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 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 is doing. >> the question is a more precise one. this goes back to the laird case where it was decided that the chilling effect of surveillance is not a sufficient harm for you to have standing to sue the government and 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 for purposes of these lawsuits which would

perhaps solve the issue of the circumstance later on the surveillance issue. >> i think that's a problem the program exemplifies. if people know their phone records are being kept by the government kills their first amendment rights. they're less willing to associate with each other, knowing that the government is monitoring them. 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 executive 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 our 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. i assume when there's a big program or interpreting the scope, you would hope there would be one appointed. but suppose you have a specific warrant investigation that in effect involves complex issues 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 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 warrant 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 programatic 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 liberties 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. 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 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 minimization by the government. i don't know if a judge will look at the files and see if they were redacted or if they

have no foreign intelligence vul and 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 technological issues. >> that's where you would have a special advocate and then you envision the special master is part of the ongoing 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 closely associated to a magistrate issues a warrant requirement, which is, of course, 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 in the criminal context. 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. still not perfect in part because these cases often 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 family service 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 courts are reluctant -- have been reluctant, pat wald said extraordinarily deferential to the government 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 wrong in the national security context. and it does help.

lou oberduffer from yale law firm used it where someone was agreeing on something like 5% of the documents and after the special faster looked at them they ended up agreeing on 80% of the documents. so the question is, what can we do to make judges feel more confident in taking on national security questions? >> i think burt wants to make a small intervention before we turn it over to the panelists. >> in 1975 phil hart got an amendment to the foia act which said when is a court appeal from an agency denial, the judge is directed to make a de novo determination of the claim of national security balanced against the purpose of foia. unfortunately, in the conference report language, they put in some stuff about deference, so

most judges have treated it as a dead letter. but it's already statutory law. >> so i want to give our panelists a chance to make some last remarks. want to start there? >> again, i think the additional challenges in the courts in terms of classified information, deference to the government. i think we have seen the second circuit and hopefully more circuits soon standing up and boldly expressing their views in favor of civil liberties and compliance with law. so i guess i remain optimistic. i do think that it's critical to reform the fisa court outside of the warrant functions so that it performs more effectively, and i think u.s. freedom act goes a long way toward doing that. >> mr. robertson? >> after you. >> you're next in line. >> you know, just on the freedom of information act, fritz, i think there's some greater hope than perhaps i started off with. i'm thinking of the d.c. circuit

and the second circuit both in foia lawsuits seeking transformation about the use of drone in the targeted killing policy. one circuit said it was implausible that the cia does not have an intelligence interest in the program and that the cia could not invoke a -- neither confirm or deny response. i think it's very encouraging that the second circuit ruled as it did last year where it recognized that when administration officials campaigned to convince the public that a program is lawful and effective and wise and seek to justify that, they cannot seek to withhold the bases for their decision and ordered the release of a memo that justified the targeted killing of the u.s. citizen. and i think far more needs to be done. i think we need just not only the legal memos. we need the facts and the same kind of reasoning might apply in other contexts where i think there's room for the judiciary

to be more skeptical about claims of national security harm, which is essentially what these cases come down to in the foia context. you know, with respect to usa freedom, i think, you know, there are opinions that are genuinely angst ridden, divided. and i think there are significant reforms that need to be made to that statute. the aclu has not taken a position for or against it, and it's a step forward, but much more needs to be done. and our thinking is that probably on balance that it should sunset and we should have a conversation that starts out from basic premises given where we are now, knowing as the pclob and the presidential review group and the doj's inspector general has said that section 215 authority has not been

critical for stopping any kind of terrorist attack. and that perhaps is where we are able to have more of a reasoned and reasonable and less emotional debate about these kinds of issues. >> i'm back with fritz schwarz. a question of whether it's lack of knowledge or fear that makes judges fear they may be wrong that makes judges defer the way they do. and i see that actually as sort of two faces of the same problem. i may not be smart enough, i may be wrong, i may get somebody killed. all of that goes into the algorithm that goes through the judge's head when the judge is making a decision. i -- i like the idea that the confluence of the left and the right on civil liberties is going to make judges -- is going to make judges more skeptical

and make -- and give judges a little more room to speak out than they have felt they should. you know, the truth is, and maybe it's just the generational thing, but the truth is that when you get an article 3 appointment for life, you take on a heavy responsibility to everybody. and it isn't just you out there swinging away at whatever targets you want to swing away at. there are all kinds of -- there are all kinds of other forces operating on you all the time, and judges do certainly at the district court level, they tend to be perhaps overly modest. a few -- if you have the guts to speak out, god bless them. judge lynch on the second circuit, god bless him. that was a great opinion, and

it's not going to be every judge all the time. it's just going to be a few. >> well, thank you very much. and i hope you all join me in thanking our panelists. a really great discussion. u.s. employers added 223,000 jobs in june. and the unemploy rate fell to 5.3%. seven-year low. but wages failed to budge, and other barometers of the job market painted a mixed picture. the labor department says the rate fell mostly because many people out of work gave up on their job searches and were no longer counted as unemployed. former texas governor rick perry will lay out his economic plan for the cannotountry at a national press club luncheon. he'll discuss how to fight what he calls the cycle of hopelessness and lost opportunity that so many

americans feel trapped in. c-span will have live coverage at 1:00 eastern. president obama's traveling to lacrosse, wisconsin, today, to promote a proposed labor department rule that would make more than 5 million workers eligible for overtime. the plan announced on monday would raise the earnings threshold under which salary workers are entitled to overtime. see the president's comments at 2:30 live today on c-span. tonight on american history tv prime time, the declaration of independence and the national archives work to preserve the document. the archivist of the u.s. national archives conservation director historians david armitage and woody holton, the editor of the thomas jefferson papers and seth pollard collector and broker of rare documents. that's coming up tonight at 8:00 eastern here on c-span3.

here are just a few of our featured programs for the three-day holiday weekend. on friday night at 8:00 eastern radio personalities and executives at the annual talkers magazine conference in new york. saturday night at 8:00, an interview with "new york times" chairman and publisher arthur soltzburger jr. and dean backay. saturday night members of the church committee. former vice president walter mondale and gary hart on their groundbroadcast dlt-breaking efforts to reform the intelligence community. on book tv friday night author martin ford on how the use of artificial intelligence could make good jobs obsolete. saturday night at 10:00 on afterward, carol berkin on why the bill of rights was created and the debates it spurred. sunday, live at noon on in-depth, our three-hour

conversation with best-selling author peter schweizer. he's written over a dozen books, including clinton cash and throw them all out. on american history tv friday evening at 6:30, the 70th anniversary of the united nations with keynote speakers jerry brown, nancy pelosi and u.n. secretary-general ban ki-moon. saturday night at 8:00. hear a brooklyn college classroom lecture on the revolutionary war and how supplies and timing often influence the outcomes of major battles. sunday afternoon at 4:00 on real america, a look back at a 1960 film featuring actor and performer joe brown about a nation wide search for old circus wagons and their effort to restore them for a july 4th parade in milwaukee. get our complete schedule at c-span.org.

the house committee is considering legislation to continue the federally managed compensation fund for 9/11 first responders who have become ill as a result. it would eliminate payment caps. the committee held a hear oging on the issue. among them 24 -- are two officers who were injured while working on the site. this is about two hours. >> ladies and gentlemen, if you will take your seats, we will

begin. i'd like to ask all of our guests today to please take their seats. the subcommittee will come to order and the chair will recognize himself for an opening statement. today's health subcommittee hearing will examine the wtc health program that was created in the james zadroga 9/11 health compensation act created in 2011. the act allocated $4.2 billion to create the health program which provides monitoring, testing and treatment for people who worked in response and recovery operations, as well as for other survivors of the 9/11 attacks. the authorization of the health program ends on september 30, 2015. another part of the law, the

september 11 victim compensation fund, is under the jurisdiction of the judiciary committee. it will continue to accept applications until october 3rd, 2016, over a year after the health program authorization ends. the wtc health program funds networks of specialized medical programs. and these programs are designed to monitor and treat those with 9/11-related conditions. for responders, the world trade center medical monitoring and treatment program, for survivors the nyc health and hospitals corporation wtc environmental health center, for nyfd personnel the fire department of new york responder health program, the national program, the wtc health program has a nationwide network of clinics

with providers across the country for responders and survivors who live outside the new york city metropolitan area. these programs provide free medical services by health care professionals who specialize in 9/11-related conditions. our colleagues, representatives carolyn maloney, peter king and jarel nadler, have jointly introduced legislation hr-1786, the james zadroga 9/11 health and compensation reauthorization act which reauthorizes the act. this legislation has begun an important conversation that will lead to a timely and fully offset reauthorization of the health program. today's hearing will allow us to learn more about how the program is working and whether changes are needed. we will hear from the director of the national institute for

occupational safety and health who is responsible for administering the program as well as from the medical director of the robert wood johnson medical school and two first responders who are enrolled in the world trade center health program. i look forward to the testimony today. and i would like to yield the balance of my time to the gentleman from new jersey, representative lance. >> thank you, mr. chairman. it is my honor to welcome david howley, a constituent of mine in new jersey's seventh congressional district to the committee this morning. david, thank you for making the trip from new jersey to share your story and advocate for those who cannot be with us today. we look forward to your testimony. i first met david several months ago when he came into my office in westfield, new jersey, to discuss the bill before us today. and this reauthorization act is critically important.

david has been a tremendous advocate for the legislation because, as he will detail in his testimony, he knows firsthand the importance of these programs for him and his fellow first responders and survivors. david joined the new york police department in 1985 and served in various departments over his 20-year tenure. he is a third generation law enforcement official following the tradition of his father and grandfather he was serving in the nypd operations division on september 11th, 2001, and spent the next several months in the dust and rubble of ground zero. i'm proud to have david here with us today. and i'm proud to be a ghost sponsor of this critical legislation. it is my hope, mr. chairman, that we can work in a bipartisan fashion to move this legislation forward quickly. and i look forward to voting for it not only here and in full

committee but on the floor of the house of representatives. mr. chairman, i yield back the balance of my time. >> chairman thanks the gentleman. and i would also note that some of our colleagues from the new york delegation who are not on the committee but very concerned of this issue and sponsors of legislation have requested to sit on the diec and we welcome them this morning. at this point the chair recognized ranking member of the subcommittee mr. green five minutes for opening statement. >> thank you mr. chairman for holding an important hearing on this program. i thank the witnesses today for the first responders for bravery of service both on and after the tragic day of 9/11. thank you for coming today to share your personal experiences with the committee and shed light on the significance of the world trade center health programs. no one here can forget the horrific attacks perpetrated on our country at the world trade center in new york, pentagon in washington and at the field in shanksville, pennsylvania. during and after the attacks tens of thousands of first

responders including police, firefighters, emergency medical workers jumped into action to assist in rescue, recovery and clean up. as a result of their service, they were exposed to dust, toxins particulate matter and asbestos. this exposure caused many of them to develop a spectrum of debilitating diseases including respiratory disorders. asthma, skin, prostate and lymphodema cancers. a report on the 9/11 health program suggested that firefighters who responded to the attack "experience a decline in lung function equivalent to that of which produced by 12 years of aging." in addition to the physical ailments these heroes now have -- many have suffered post-traumatic stress syndrome, ptsd, depression, anxiety stemming from psychological trauma they experienced in the aftermath of the attack. nearly one decade after the september 11 terrorist attacks, the james zadroga 9/11 health

and compensation act was signed into law. the act created the world trade center health program within the department of health and human services. the program provided evaluation, monitoring and medically necessary physical and mental health treatments to first responders and certified eligible survivors of the world trade center related illnesses. it's also established a network of clinical centers of excellence and data centers. for these responders and survivors who reside outside the new york area, the act created a national network of health providers who provide the same types of services for world trade center related illnesses. while cancer was not originally listed among the statutory wtc related health conditions, 60 types of cancer were added. and in 2012 at their petition by members of congress. as of may 5th of this year 3,700 members of the health program had cancer. the act also established the victims compensation fund that provide compensation for harm suffered as a result of debris removal.

without action by congress funding for the current health program will terminate on september of 2016. the 9/11 health compensation and reauthorization act will reauthorize the critical world trade center health program and the victims compensation fund. as required under the current program, new york city will continue to pay 10% of the total cost. it's important to note the wtc health program serves our heroes nationwide and extends far beyond the new york area. both these and currently enrolled and future enrollees live in all areas of the country. as of august 2014, 429 of the 435 congressional districts were home to at least one 9/11 survivor. we have a duty to serve our first senders and survivors and heroes with complex health care from 9/11. it's critically important we

support the 9/11 health compensation reauthorization act. i'd like to thank the first responders for their gallant and selfless service on and after 9/11. also like to thank the doctors and administrators of the program for their efforts to treat the complex illnesses inflicted on our survivors. and continue the research on the impacts of toxic exposeureexposure. mr. chairman, somebody on our side of the aisle would like a minute, i would be glad to yield to them. i would like to yield to my colleague from new york. >> i thank the ranking member of the subcommittee and the chairman and welcome our witnesses here today. while not a member of the subcommittee, i am a member of the full committee on energy and commerce. i'm congresswoman clarke from new york. and i wanted to thank chairman pence and ranking member green for holding this hearing and for allowing me to sit in on this very important hearing.

also i want to thank our panelists. it's good that you've shared your experiences and remind america of the importance of renewing this very important program. this is a great first step toward reauthorization in a time when the american people are skeptical about the work of congress. i'm happy that this committee's working in a bipartisan fashion to move expeditiously to renew this important health -- these important health programs. congress must move forward to ensure first responders and survivors of the 9/11 terrorist attacks on the world trade center, the pentagon and shanksville, pennsylvania, continue to receive the care they deserve and so sorely need. with that, mr. chairman, mr. ranking member, i yield back the time. >> mr. chairman, i yield back. >> chair thanks the gentlemen. now recognize the chair of the full committee. mr. upton, five minutes for an opening statement. >> thank you, mr. chairman. now, back on september 11, '01, the world as we knew it was turned upside down by the unthinkable acts of terrorism which took the lives of nearly

3,000 individuals in new york, pennsylvania and virginia. left a mark on every american. every one of us was impacted. from the smoldering ruins of the twin towers in the pentagon to the wreckage of united airlines flight 93, the painful images and heartbreaking personal stories of that day every minute will not be forgotten. we are remembering the thousands of innocent lives lost and the loved ones left behind. many of us met with those. we also honor the countless acts of leadership shown by the american in the hours of pandemonium. and in the days, weeks and months and years that have followed. then for me as chair of the telco subcommittee and on this committee i led a bipartisan delegation both to new york and to the pentagon where we witnessed firsthand the valiant efforts of our first responders who were certainly exhausted, overwhelmed but still working

24/7. first responders spent hours, days in the air thick with dust and smoke digging through the rubble searching for sorry vifrs. survivors. when i visited ground zero, new york's finest were still working around the clock in impossible conditions for the recovery efforts, and their selfless work took a toll on their health. we know that. the federal government provided aid to those that were injured and the families of those killed in the attack through a discretionary grant program, as we should. 2011 the zadroga act established the world trade center program and the victim compensation fund. our ranking member pallone and our new york colleague, carolyn maloney and peter king, jerry

nadler, now introduced hr-1726, the restoration act which would reauthorize both of these programs. in today's hearing we will focus on the world trade center health program as it is the program that falls in this committee's jurisdiction. the authorization for the world trade center health program ends at the end of september just a few months from now, while the victims' compensation fund remains open for applicants into 2016. it funds networks and specialized medical programs to treat those with 9/11 related conditions. the members enrolled in the program are not just from the greater new york area. in 2014, there were 71,942 individuals in the world trade center health program from 429 of the 435 congressional districts. in fact, there are 75 michigan residents currently enrolled in

the wtc health program. today's hearing is, yes, an important opportunity to learn more about how the world trade center health program has operated since its authorization in 2010 and what is it needed to successfully operate and meet the needs of those in the future. i want to thank all of the witnesses for taking the time to be here and especially officer howley for sharing their story. the bill needs to be passed and i will look to consider every effort to make sure that we get it to the house floor prior to its -- prior to the end of september so we will have an opportunity to make sure these victims are taken care of. and i yield back the balance of my time. >> the chair thanks the gentleman. the chair is pleased to recognize the ranking member of the full committee, a gentleman

who has many constituents impacted by this issue. mr. pallone, five minutes for your opening statement. >> thank you, chairman pitts and chairman upton and i want to thank chairman upton for the comments he just made, highlighting how we need to perceive this as a national program, and impacting people that came and helped out on 9/11 and the aftermath from all parts of the country. my staff is probably tired of my telling the story but i remember within a few days after the attack, we went up to new york city with president bush and i was standing next to this big yellow fire engine that said hialeah, florida. and i said, what is this truck doing from hialeah? because i think it was only one or two days after and i wondered how it even got there so quickly. and i talked to the firemen from hialeah, florida, and they said as soon as this happened we got

in our fire truck and we drove up from florida because we wanted to help. and it just struck me at the time about how so many people responded from all over the country. and so many people were injured because of the fact that they were there for a few days or a few weeks or a few months even. so this bill is a critical first step in ensuring that the 9/11 health program is extended as soon as possible. as you both probably already know, this is one of my top priorities for 2015, and i'm grateful for chairman pitts and upton for your willingness to work with us to make sure the timely passage of the bill. i have to recognize all of the first responders who are here and whom we owe a debt of gratitude. and i wanted to acknowledge dr. iris udasin who runs the new jersey health clinic. and thank you for being here and sharing your expertise with us today.

and let me mention representative maloney, the sponsor of the bill and representative nadler, and representative king i see who joined the committee today and our representatives, yvette clarke, eliot engel and leonard lance, a co-sponsor. since day one you fought tirelessly to make sure the responders are cared for and i'm proud to fight alongside you. beyond the loss of life we know with great documentation the first responders are suffering debilitating illnesses from the aftermath. in fact, more than 100 firefighters and 50 law enforcement officers have lost their lives to wtc related health conditions. additionally active duty firefighters and ems personnel and 550 law enforcement officers were forced to retire due to wtc related health conditions. we now have a deep understanding of how the tons of