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, many days and learning from the inside how these programs operate and really getting the intelligence communities' understanding as well as hearing from the civil liberties groups who are advocating on you performing these programs. how do you see the judiciary to the counter work you are doing. >> first of all, i agree with what has been said by the prior panelists and judge wald might have agreed with what i might say today but my views are my own. but the independence of the court adds credibility to its review. the court has an appellate process where it can correct decisions. >> and you mean the fisa court.

>> the fisa court and how they could improve that but courts generally. i think the down side of courts generally is they are not often well equipped to handle classified cases. aside from standing issues, the process of handling classified materials, stamped with clearances is a challenge with the courts and they have shown timidity when taking on the government and they defer to the government or rather than challenge the government or look for the least intrusive for the rights with civil liberties. so make a pitch for the krif liberties oversight board, we complement the judicial. we can meet with the nsa and cia and fbi informally and confer with congress informally without rules of evidence and standing requirements and have a review not limited to lelt review, although we did a legal review

in the -- and i was pleased the second circuit adopted our legal analysis and we can do policy review and make recommendations to the president and to congress, not only on whether something is congress or legal which is important but whether the program strikes the right balance between civil liberties. >> and do you think the courts aren't well equipped to handle the classified evidence the secret creepy programs or -- >> 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 us what you have to do. they bring you a safe and put it in your office and you don't know how to open the damn things and your law clerks may or may not be cleared and no matter what kind of classified

information you are handling it is difficult to handle it and deal with it, but more than that there is this -- 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 -- because it is a separation of powers question but because what do we know about intelligence, what do we know about the merits -- we're not trained intelligence officers, although i did serve in the office of naval intelligence for a while. i served as the administrative officer to a young captain who was running naval at around ays around the country. and of course security is a world of its own. we need three more seminars on

the over-security of life in america but that is not today's subject but it does intrude on the way we handle classified material in court. so, yes, we defer. and by the way, pc lob deserves all of the credit for billing the cap on the -- on the illegality of the section 215 program. before the report came out and said here is why it is unlawful as a statutory matter, everybody was chasing the constitutional issue. but the second circuit finally adopted the theory that pc lob came up with and that never surfaced in any fisa proceeding. there was no adversary in any

fisa proceeding that made the points that pc lob made. i have gotten off the track. >> that sort of leads up. i did notice -- >> i had to give kudos to pc lob because they deserved it. >> and there was a lot of work made to the pea club and extensive citation and that is a dynamic to see between the two institutions playing off of each other i think. and coming to your point about judicial deference to claims of national security 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 and maybe you want to talk a little bit about that issue? >> i think it sort of begs the question as to deference with respect to what. certainly when we're talking about the criminal context

there is 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 is one of the strengths of our criminal justice system. i think about the context of guantanamo where the courts in d.c. have certainly shown themselves fully capable of adjudicating those important habeous cases, i'll put aside now the d.c. circuit decisions in which review has been circumscribed to i think the detriment of our system. and i think -- perhaps judge robertson you are being modest, but i do think the courts are well able to address issues of classification and indeed they do so all of 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. kirk you the with respect to -- circuit with respect to force feeding tapes at guantanamo. the government said the video tapes were classified an the judge had no authority to order their disclosure applying the first amendment right of judicial access. there are certainly arguments to be made but the argument made was for complete deference to the executives classification decision. and that is something that i think we look to the courts not to do. we look to the courts not to defer when the executive branch decides what its interpretation of the law is. that is a quintessential judicial function and the use of secrecy and classification,

including with respect to classified opinions interpreting the law should not deserve that same kind of deference. certainly i think we can all agree 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 branches claims of deference based on classification concerns and our need as a democracy, based on separate of powers and checks and balances to -- 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 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 of the pentagon papers it looked like the government had a slam dunk case. but "the new york times" had very able counsel said judge s.e.c., and in closed session new york times counsel questioned high level officials at 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 judge sax did that advisedly with the importance of an adversarial process where claims of authority are not disposeive but subject to judicial review. >> since we're passing praise around i want to turn some praise back to judge robertson

who was a witness on the p club first hearings an talking about the short comings of the fisa process and how judges hear one side of the case and find it persuasive as you are mentioning and that is the end of the story in the fisa court but if the judge hears the other side of the case uh-huh, that is interesting too. and judge robertson's testimony for me led to a recommendation there be a special advocate in the fisa court so both sides could be heard and that is an example on 215 and it took our report to bring some legal issues to bear that the judges approving 215 every 90 days and approving the program initially never wrestled with there wasn't an opinion from the fisa court for many, many years after the program was operating and again that is a short coming which is to say that parts of the fisa court to be improved and the short comings of the way it was

operating in the pass. and a challenge of the nonfisa judicial and judges expertise and it is a challenge to push back on the national security program when a judge hasn't heard national security cases before and judges wrestle with that and that is a challenge. and the second circuit case maybe broke some ground on standing because as said before that is a challenge to get the judiciary involved in the first place, the state secrets and standing but i think it is encouraging that the second circuit found standing in this case for the aclu to challenge the telephony metadata program. >> it looks like we're quickly getting into the fisa court so let's explicitly go there. so judge robertson if you were on the fisa court at the time that the section 215 program came up to you right do you

think there was a way available to you to make that process more adversarial and what i'm referring to now is the provision in the court's rule, the procedures for appointing an amicus. is that an option, why is that used so infrequently? >> to be quite honest i never even knew it existed and never paid any notion to the ammicous and i do not believe i would have behaved any differently from any of the other fisa judges. you know after the -- in the first case to go up on appeal, the one that had to do with the chinese wall and that whole issue, judge silverman'sin famous opinion that kind of called it -- kind of laid it all out made it clear that it is not the business of fisa judges to pass on the intelligence value of anything that is being

sought. that is the business of the attorney general and the head of the -- director of central intelligence or his or her delegates but not the fiesa court. so all they have to do is ser that there is 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 are looking for this information. >> but in the context of the section 215 program, clearly at issue was the idea of what is relevant, right? the statute says you can collect records that are relevant to an investigation and that seems to me, it is not really about intelligence value as such, but it is interpreting a word that is used in many different laws kind of across our system. so it is sort of a classic legal issue for the judiciary, right?

>> well there i suspect the judges on the court -- the prisoners of the word -- of the use of the word "relevance" and things like discovery. relevance is anything conceivably relevant and we'll decide if it is admissible and relevance is a whole big question and relevance -- there is almost no limits to what is relevant. and that -- that is 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 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 now potentially up for consideration by the senate later this week i guess, on the 31st. so shortly. and one of the things that is in usa freedom is a provision that

requires the fisa court to apoint a panel -- appoint a panel of people who could be called upon to be served as a public advocate as the court's discretion. does that add enough to the fisa process to sort of bring it more into the norm of what we would like to see. >> the short answer is no. i have a longer answer. predicated on the fact that i'm shaking in my shoes about judge robertson saying it would not occur to judges on fisa judges who had that ability in the initial period. because in usa freedom, certainly there is a step in the right direction in terms of including an amicus or an advocate but it needs to be made far, far stronger. i believe it currently stands that there are three kinds of

amicus, one to provide viewsond privacy and civil liberties or technology 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 am eek us -- am eek us civil liberty and law reviews because we should not open the door to those things not coming before the court. but i think even that is not enough. i think that there should be -- in addition to the view points, greater transparency with respect to the court's opinions

and what those opinions are about and aimed at. and even so, and the 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 should be done far for more. one -- obviously the issues that is coming up is putting an end to bulk programmatic surveillance and there is no doubt that is a good thing and we'll see how that debate plays out, heaven help us. but i think what we have to take into account, whatever is happening and how it happens has to be the start of a new level of conversation on these sets of issues and not the end of the conversation on this set of issues. so the usa freedom still doesn't deal with all sorts of problems

that exist with respect to notice in a variety of other contexts. so i'm thinking about what judicial review requires and whether or not an adversarial review requires and just to lay out there there are fundamental problems that we still have to deal with. there are, i think, in civil courts at least in theory three ways in which the surveillance programs might end up being adjudicated. one is civil claims lawsuits brought by people impacted or affected by the policy and the issues are still standing, state secrets and need to be addressed and the other way is in criminal cases where criminal defendants could challenge surveillance authorities to which they have been subjected. the problem there is that right now notice is only being provided under section 702 as opposed to various other

provisions under which these authorities are being conducted. and even when notice is provided the information that underlying the surveillance is not provided. and so i think we have to clean up those notice and other provisions. the third way in which the authorities might be challenged might be by communications providers, that in order to provide the information there again we have issue in the communications providers don't have the same incentives at customers. they are 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 fisk context. and so amicus, a good thing and far much more need to be done.

>> and everything you've talked about has been within the context of the fisa court structure. so basically you are saying we need to improve the fisa court to make it look more like a regular federal court at least when we are talking about instances where court is approving through large programs right? so do we then need the fisa court. if we are spending time and energy trying to make it look more like a federal court when it is performing a certain kind of function, right, not the fuchks that it was -- the function that it was set up to perform, which is orders on surveillance on particular individuals, but these broad programs, so we're trying so hard to make the fisa court look like a federal court but wouldn't it be possible to move that function or to put it in the federal courts? anybody? >> that is a very good question. that is 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 was that it was fundamentally because of the sensitivity of the intelligence process and 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. so -- but if all they are doing is issuing warrants -- that can be done -- i don't know these days because we have secure facilities and secure

communications and all article 3 judges are deemed to be clearable, why that is i don't know, but we are. so you could theoretically move the warrant process into regular -- regular chambers of regular judges. but the program part of it should absolutely be done in a court that has an adversary process. now i take issue with money 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 the court that has

an adversary? i think that the fisa judges have the requisite humility and respect for the process they would invite panel participation. i have suggested on objection however that it be required by statute or rule, that to the extent they are dealing with programmatic things they must have an adversary. and if i -- i would suggest that if any fisa judge requested it the court would impanel three judges to consider -- 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. but permanent agencies permanent adversary agencies,

no. a panel is good enough for me. >> well p pod did recommend a panel. but we think the judges need a nudge to get them to appoint outside parties, special advocates to represent citizens and private civil liberties. and rule 11 and not the civil rule 11 but the fisa rule 11 where the government indicates that there is a matter of unusual technology or unusual legal issues and i think that could be an appropriate trigger for the fisa judge to call in outside party and to represent the other side. and there may be a program or a new collection technique where it would be beneficial the first time ruling on it to have an adversary to raise views. and what we called for is having the judges report on how often they report an advocate so they could be held accountable because we don't want to create

the structure of an advocate and have them not use the advocate and not having true adversary proceedings but there is another act for fisa to play aside from program approval and warrants and that is carrying out the program. where i think the fisa court can play an important role for instance in 2015 program, once the program is approved, under the current rules, the judges of the court have approve each 2015 request to approve each reasonable suspicion and i think that is a hard call for a judge not part of the fisa system to understand all of the dynamics of what the investigations are, of terrorist organizations and how this particular request fits in. that is an example where the fisa court to play a role and not refer to the judiciary at all. and other than they approve and otherwise it is hands off other

than a yearly renewal. and the p lob provided a sample of targets and queries done to give the court a chance to oversee the program and not just approve it initially and to make sure it is working in consistent with the statute. and i think we might not have had the 215 process if the court was publishing its opinions for the public to see and the board recommending going forward is the judges write their opinions in a way to anticipate them being declassified or a classified section and declassified -- >> they're not smart enough to do that. because somebody will say no you can't -- we're going to take that sentence out. >> well make that start and the government can do the declassification review. >> do you want to respond. >> just 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 fix is because even though under usa freedom certain forms of bulk surveillance will be prohibits and other kinds of bulky vfgs gathering will still go on so we still have the need for 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 and that is again why i think that we are just at the start of a conversation and certainly 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 must make your

head probe when you try to figure out what they are doing and the fisa court decisions that have come out, we've seen the court really getting deep into these very complicated issues. and so is our sort of equipped to deal with that and are there ways in which we can make it stronger and i'm thinking also of the judiciary over here. >> and i'll start with our board. and we can spend a lot of time making a deep dive into how the agencies operate. we meet with congressional oversight committees with advocates and academics and can gather information from a variety of sources which allows us to do a legal and constitutional analysis and that is harder for the court that has a more stricter set of rules of evidence and the court's focus is narrower and we can look at the policy determinations and

the court is looking at the legal and constitutional issues. >> and you see from the fisa court opinions that have come out and you see judge bates going through ncts and back down through a level of detail. is there any value of having a sort of independent technology component to advise the court for example? >> well, i mean there -- 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's 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 at worse if any government agency were -- were caught being less than forthcoming with the fisa court because there is an adversary present. i can't really accept that argument. but as to whether there should be a special agency to advice the court, well they have a staff. they are being advised by the government. and that is what an adversary is for. that is why we should have an adversary. the fisa court is not an administrative agency, it is not the p club. and judges are not administrative agencies, they listen to what you say and what you say and decide. and for judges to review the

bells and whistles and say that's okay, that's okay that's okay, and without np adversary there, it is not -- i'm sorry i'm johnny one note here it is not what judges do, what judges should do. >> but that is of course what the fisa court has been doing. when you look at section 215 and section 072 programs, the fisa court is saying broadly speaking this is okay and you have procedures over here and those look okay. some of what you are suggesting, david, is this ongoing oversight function, which you judge robertson to objected to at the very beginning. so you want to have somebody looking over the intelligence agency's shoulder in a sense to make sure they are complying with the rules the court has set out and you are saying that is just not a judicial function so how do we square that circle? >> that is what congress is for.

anybody here from congress? fix it. >> i guess i would say that i think judiciary is proving them legal and constitutional and i do think that to oversee the programs, sometimes the judges oversee consent degrees an they could do that. judge wald and i recommended in the 702 report that there is min hiation which is a -- min hiation -- which is -- >> minimization. >> yes. and one things judge wald and i called for is for the fisa court to appoint a special master and have them review the government's min hiation efforts and if they fall short oversee the efforts until they are in compliance with the procedures and the constitutional

protections so that is a role where the court can be involved in overseeing the program and making sure it is operating properly and that is the quid pro quo for approving it to make sure it is continuing to operate. and i'm less forthcoming, i couldn't agree more. the government should trust them as much as it trusts anybody with sharing classifying information. if there are parts of the program they are not comfortable talking about, then i agree, they should knot be a -- the program should not be approved on that basis. >> this entire decision is taking me back to the place that we started out and keep coming back to which is the importance of an adversarial process because remember when it was first revealed there was this metadata program and there were officials about saying this isn't content and metadata isn't so bad and there is more information coming out from technology experts including the

expert we have in our aclu collaborate case at felton who the judges found persuasive talking about how much information metadata actually reveals. in fact, in -- if not more, information about your personal associations and information. and i think that when we think about government collection of information, especially massive collection of information which technology has permitted, we have to keep in mind what the 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 the checks and safeguards, as technology grows leaps and bounds is to have technology 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 an adversarial prose and not as much when you have only the government experts talking about what the privacy and civil liberties implications of what certain kinds of technology are. and i think just in the ways in which 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, nod judicial regulation in that way. i worry that the kind 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 the same kind of debates after more massive violations again. >> and p club recommended that the fisa court take advantage of technology knowledge. i know the court could go outside and get its own advice or have the advocate to provide the advice and we've been hiring experts to provide the technology where the technology is sophisticated and it is important to have lawyers and technologyists take a look at that. >> and this is the 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 that justice brennan gave back in 1987, which i've had on my desk for many months and one of the things that justice brennan

argues and i think everyone can agree with this is that the united states traditionally downgrades civil rights in the time of crisis and we've seen that happening sick lickly across the last century or whatever. but he said that because of the cyclical nature where the pendulum swings one way or back and then 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 wear on terror the last i checked, which is characterized by many people as a forever war. this is a war or a struggle that will go on for a long period of time. and so how does that actually then impact this dynamic? how does that impact the permanent pendulum swinging back and forth because every time we think we've gotten beyond one

terrorist group there sprouts another one we are concerned about. you've dealt with al qaeda osama bin laden is dead -- who knows how -- and now you have isis and probably three or four years from now there will be somebody else and so you'll be in this constant state of lower level emergency certainly than the world wars or vietnam, and is that going to strengthen our juris prudence or degrade that over a longer period of time. and an institution like p club can play an interesting role when you look at a longer stretch of lower level security problems. >> i hope the judiciary sitting in the middle of the pendulum and is a checker on both sides and there was an article suggesting in times of national crisis the judiciary can play

that role. and we've seen that on military combatants and habeas corpus and going back to the steel dedrick case where the court focused on constitutional concerns. so where things may sway further, that the court would be more focused on the law and the constitution and not the sway -- >> do you think that is really right, david? aren't you putting a gloss on that, a little bit? >> i'm an eternal optimist. the second circuit court case is very encouraging we are fighting terrorists but the court said this is a program that is illegal and the 215 program should be stopped. i hope our board can play a role. we are independent. we don't have to clear our views with the white house or the office of management and budget we are bipartisan and three democrats and two republicans and i hope we can also try to be very fact-based and do clear

strict legal analysis and be transparent about our thinking as well. >> but let me push you back a little bit on that too. because the p club has split. it is bipartisan but on some critical issues, i haven't managed to get consensus amongst your five-person board. 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 boards' views. and as i look around town, i don't see the unanimous court every time and so i don't think it is surprising when you invite five people to come in and bring different perspectives they might see things differently. being unanimous is the least common denominator and more important to show our differing views and analysis to inform the public debate. and again it is encouraging that we recommend the end of the book collection authority and the president adopted it right away and the second circuit adopted

it and perhaps on sunday the congress will adopt it. >> perhaps. >> judge robertson, what do you think. >> having seen these national security pendulum swings, does the fact that we have a long running thing, is that going to make a difference? >> i think it will make a big difference. i think the suggestion is that the judges -- the judiciary doesn't swing as far as the pendulum swings is probably right, because we are -- judges fly the flag in their head and get patriotic and there is danger out there and we have to be aware of this wear on terror but the longer the wear on terror goes on the more immune

we're being to the alarms being sent out all of the time and i really think that we're getting into kind of a steady state situation where everybody is worried about national security all of the time but it is not driving us nuts. and i think the judiciary is 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 there are causes for optimism optimism. one of the things that justin brennan said in that speech was part of the cyclical nature is that once you come out of the

emergency, the country remorsefully regretfully realizes that the abrogation of civil liberties was unnecessary and perhaps we are getting somewhere to that point. i think about the recent polling we did in which a majority of americans thought more constraints needed to be placed on surveillance authority. think about the fact it may well be that section 215 sun sets as a result of where we are. that kind of thing was -- 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, right. 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 what the enemy is and how wars come to an end. and there are claims of war-based authority to use lethal force and to unlawfully 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 talk in hamdy about how she talked about 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 unraveled and i think we may be getting to a point where courts are willing to look at those traditional notions a lot more searchingly, perhaps even skeptically. i'm thinking of decisions that have started percolating in the domestic context with respect to domestic authorities, surveillance obviously being one with respect to americans, but also with watch listing for example, which has been one of the significant increases post 9/11. and last year a federal judge ruled for the first time that the governments would address process for -- for providing address to people who sought to challenge their blacklisting status on the no-fly list was unconstitutional and that the government's gloemer policy of refusing to confirm or deny people were on the list could not stand despite the 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 spara. concerned citizen. >> i like that. >> i have two related questions and an observation and i'll try to be brief. it seems to me that none of the oversight mechanisms or review mechanisms that we've talked about and during this panel deal with the problem that mike german was talking about earlier

in the day with respect to the outsourcing of any of the intelligence function to third parties and in 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 a related question which is, if you look at the statute that underlying the authority for the p club, it is quite limited. as to the remit of the p club. and so my question along with those lines is in relation, should the remit of the p club be broadened or do we need multiple p clubs given the breath of the programs that are out there and that may in fact need some second eyes on them. thank you. >> p club's jurisdiction is limited to federal counter-terrorism 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 to counter-terrorism. we haven't taken a position on that. but there are people in congress who seem to be thinking along the same lines. and my view on the outsourcing from p club's opponent of view, if it is a federal counter-terrorism program, maybe carried out through contractors i don't see why it would not fall within our oversight jurisdiction. >> i have no view on the outsourcing question. but as to the -- as to where the writ of p club runs i suggested at the first meeting that the chairman was talking about that p club should be the adversary in the fisa court and p club said oh, no. not us. >> i should say in part because we do have another function besides oversight which is advice because we give agencies advice as they develop new programs and develop laws and regulations and we hope this will help them get it right at

the beginning and not have to be criticized later on but it would put the club in a challenging situation to have adviced about the creation of a program and the challenge the same program in court and that was part of the motivation we preferred to have outside lawyers serve as adversaries but the usa freedom act has the court consulting with the club in determining which outside counsel to choose to put on the list. >> do you want to talk about that? >> just that i think it is a pressing issue and needs to be dealt with. the ways it has come up with most prominently, 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 has been some -- but certainly not enough accountability in those contexts but i think 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 are standing and the state secret's 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 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 circularity 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. less willing to talk to the press, speak to organizations. i think relaxing the view is

something that can be done legislatively or judicially or 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 programmatic 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'm not sure a federal judge will sit and look at intelligence files and see if they are properly redacted, no intelligence value, were destroyed. but that would be an appropriate thing for a master to look at the random sample and then make sure minimization procedures are working properly and 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 analogized closely to a magistrate issuing a warrant requirement, which of course, is far from what has subsequently happened. but even in that context, in the criminal context, there is the idea that should there be a challenge, it would be brought later on. and that kind of challenge is not visaged here. i think i would be remiss if i didn't mention the second part of this which is the parallel construction problem which is when information obtained through these authorities is provided and disseminated and then the government constructs a case and so notice doesn't have

to be provided or appears these surveillance parties hasn't been relied on so it appears the constitutional issue can't be raised in the final 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 a special master in a foia case, in which the department of defense was agreeing on something like 5% of the documents and after the special master 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 there's 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 out with. i'm thinking of the d.c. circuit and the second circuit both in foia lawsuits seeking transparency about the administration's targeted killing policy and the use of drones. 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. [ applause ] >> we wanted to have one final panel again recognizing the work of the staff in these instances

a church committee staff. basically throw it out there. what we got right what we got wrong, what did we miss, what did we not do next. let me introduce you. first judge paul michelle former assistant council to the church committee. one of the therng that fascinated me about this the year i spent working with these incredible people, how incredible their diversity is both before and after their church experience church committee experience. he was an assistant watergate prosecutor, worked department of justice, nominated by ronald reagan to federal court of appeals, became chief judge in 2004 before he finally retired in 2010. peter fenn, washington chief of

staff for senator frank church. he founded -- among other things founded and was executive director for the center for responsive politic self-described operative political operative not intelligence operative and now runs fenn communications. patrick shea. he was the former assistant to the staff director of the church committee. has one of the most versatile career. you should look through his biofor all of it. on president's commission for aviation safety and security twa -- after the twa 800 disaster. national bureau of land management and deputy secretary for land minerals. so thank you for participating. what did we get right, what did we get wrong and what do we do next? >> well my submission is the courts have a significant role

in this along with the actors providing over site and policy and guide sans input. and to fight the court is not the whole story. it is an important part of the story, theive provements discussed here today would make it better. i think there is a growing and significant role for the regular courts as well. in the final analysis, legal rights are meaningless unless they are enforceable and that really means the courts have to be available and effective. i think that the attitude of the judiciary, the level of understanding the level of scepticism has changed markedly for obvious reasons for the disclosure going on unbeknownst to them and to others around the country. so i think those like standing, executive privilege, state secrets, all of the doctrines that have been used in the past

to avoid reaching the merits are losing power and losing power fast. so i predict the courts will do a much better job in the past few years than they have recently. with resect to dealing with secrets, courts have lots of experience. i myself worked on a case involving stealth aircraft technology before the word stealth bomber entered the lexicon. we knew had you to clear classrooms classified storage device and work with officials so the idea judges can't do it because it involves highly classified stuff, i think, is not really sound. now, to the extent that some level of specialization might be useful, there are a thousand federal trial judges and about almost 200 federal appellate

judges. that's a lot. 94 districts in the 50 states. there is a model that we could use if some degree of specialization is thought to be essential. there was something called temporary emergency court of appeals which was staffed by regular judges from around the country on special assignment, somewhat like the fisa court, you could have that -- so you could have that model used again. i think the biggest problem is the advance of technology, especially electronic technology and the utilization by the intelligence community has been so rapid that the law has not kept up with it and lawsuits have not kept up with it. the fourth amendment was obviously written in a completely different technological era. to my way of thinking, as valuable as the constitution bill of rights protections are, they are not adequate because of this rapid, rapid advance of technology and its advancing even more rapidly now than in

recent times. so i think what is needed to make the courts more effective is for congress to define some red lines, if we want to use that expression, that intelligence agencies are not to cross with respect to collecting and analyzing data about americans who are not the target of founded concerns about being terrorists or criminals or whatever. if congress would do that, the effectiveness of the courts would rise even further. you know, the core confidence of judges is they look at a law, they look at a set of facts and say was it legal or was it not legal. they can't duck the issue. they have to decide the issue. they will decide the issue. but if the law is clearer, then

the outcomes become more predictable, fairer and more effective and that provides guidance for the actors in the executive branch and help the legislative branch. so i think what we need is for congress to get in the game and work sort of in a tag-team fashion with the courts. i also think that no one else can do it. you can't count on the executive to make a judgment for the whole society in a democracy of republican form of government. really only the congress is the legitimate person to assess these competing considerations and strike a balance. they're not perfect. nobody's perfect. but they're the right people to do it and i hope that they will. i think that they are certainly moving in that direction. last thing is, we've talked a lot about some of the output of the church committee but there were a lot of statutory reforms

that we haven't talked about. for example, limiting the irs be used for political purposes. that was enacted in statutory reforms and other reforms. there is more that can be done in that area as well. there was an effort to develop a charter to for the fbi which was done by the fbi and the justice department, mostly written by director john hoet us and me and it gone way down the track with the approval by the carter administration, the attorney general and the director of the fbi and at the last stages it sort of got pulled from consideration. i think there is good potential to enact charters for the key agencies that would set a broad framework within which specific statutes, specific guidelines and oversight can take place and be more effective than it has been before. i think also there is a good role for guidelines. but again, guidelines have to take place in a context and the context most broadly has to be

set by congress in statutory form. that's the single biggest thing that we need to improve the quality of the restraints on the intelligence community and think from having spent many engineers as criminal investigator involving public corruption as you've heard, that the intelligence agencies will not only be able to observe appropriate civil liberty, civil rights privacy interest but become more efficient and effective against real terrorists if we move in this direction. so it is not a question of give up safety to have privacy, you can have both but it takes smart laws and it takes constant updating because the whole thing is a moving target. the technology is changeing a mile a minute. congress has to get in the act. the courts need to step up. i think they are. i think they will. i think like the congress there's sort of a special role of judges.

they are appointed for life. nonpolitical and they are like monks and days of old. they are independent and not wrought up in the dispute and they are fallible like all other humans but if you have to pick whether somebody should be a referee given what the statutes and the constitution should say there is no better alternative than federal judges so let us play our role, let the congress play its role and we can advance this ball a great deal very rapidly. >> and as a federal law enforcement officer, and fbi agent, i can say, i agree with you entirely. never found bad guys by investigating people who were innocent. and i think that is something that is missed. peter. >> first of all, i would just --

my hat goes off to you and to the brennan center and fritz and the whole staff. this has been an incredible day. you've done so much work to prepare for it. i know you are going to do a lot of work after it is over. but this is a public service. and it's come at the right time. and even with us gray hairs up here to make sense of some of it. i come from the political sort of public side of this. in addition to the time spent on the committee and the time spent in senator church's office, i've worked for three decades to elect candidates to office, failed with this fella in utah, but democrats in utah don't tend to do too well but pat and i have been great buddies for a long time, even before the church committee. but one of the things that concerns me a lot is how do you bring the public into this. how do you move the ball down the field when you've got some

very complicated issues, when a lot of it is secret, when people haven't studied it and thought it through and when you have, and i hate to say it, elected officials, who tend to act very quickly, when push comes to shove and they may not make the best decisions on sunday when they vote on this. and i wrote a column, partly at your urging, where i said, i think we have got to get it right. i think it is really difficult when you pass the patriot act in the heat of passion. and folks that are not terribly competent on some of these issues, read the congress, are making decisions on this. and there are two things that we have talked about. politically i understand that they are tough. but folks should call for a new

church committee in the congress, made up of people on the intelligence committees, on the homeland security committees, people who have a real interest and understanding and passion for this subject and to sort of step back and look at it. at the same time, my view is, and i expressesed this in the white house, because as a political consultant i get in there, and i said you should have a simpson-bowles type commission to look at the intelligence agencies. they should have subpoena power. they should have really solid good people on it real serious folks and serious staff, and we should begin to look at some of the questions that -- that paul just laid out. we should look at what we need to do with the fisa act. we should look at what the role of certain judges are. we should take a good, hard look at what the executive does with i.g.'s and whisle blowers, and

if we are shutting down in this country, people who are concerned and have moral questions about what our policies -- if they are looking and they can't come and say, you know, we're torturing people overseas. you know, they just destroyed these tapes. they shouldn't do that. then we're in real trouble. because when you're spending $70 to $80 billion, including military money over 107,000 staff people in the intelligence field and plus the folks out there -- the contractors, and they are building this multi-billion dollar facility, again, in the state of utah to suck in all this information they gather, somebody who has questions should not have to travel to russia to let it all out. we should figure out a way to make these people not pariahs but folks who are doing their

jobs. so i think -- and i'm not a waif political idiot so i know some of the second church committee isn't the easiest thing to get done or to sarah presidential commission. but i hope that this -- if this president doesn't do it, that the next president does, and gets really serious about it. >> and i think that is why you are right, it is the public education part that is so important, that we're trying to accomplish here with your help because once the public puts that pressure on the politicians, whether it is the executive branch or -- >> and i'll tell you one quick thing, i just an hour ago did a interview with steve skully, from c-span the wonderful folks here taping this. steve played for me about a two-minute byte from frank church from 1975 on "meet the press," and you're sure it will be on c-span.

i thought to myself, holy cow he could have said that yesterday. talk about that -- looking inward, the precisely your words, about what will happen with our technology, it is getting greater and greater and so -- and the public needs to think a good deal more about it. >> and we have a rethinking intelligence project if fenn communications wants to. >> i just do pro bono stuff anyway. >> patrick. >> mike, i hope that you will become the next director of the fbi. it would be refreshing. [ applause ] >> i don't think that is likely. >> in utah, if i could help somebody, i say i would oppose them. and so i oppose you. and i want to thank fritz and bill miller. he and i have not always had a harmonious relationship when i was on the committee. >> pat, you haven't had a harmonious relationship with

your friends and people that work for you. he's irish, you know. >> he helped me on the campaign my opening line for governor as an issue catholic democratic governor from utah, i'm from the government and i'm here to help you. in 1992, that got the same response as it would today, unfortunately. i think what happened to me the other day, yesterday when i arrived, in 1969 it was the first year i was here in washington working as an intern for senator moss from utah. i landed at dulles, the new airport at the time and i kept thinking of john kept's ask not what your country can do for you but for what you can do for your country and martin luther king's i have a dream speech. there was such an aspirational

dream to the government and people thought they could make a difference. and the other day when i got into reagan airport all i could hear is the "house of cards" theme music, and i think that captures what has happened in the 40 years. we've went hollywood and defined what we consider to be political reality and as a criticism of the intelligence community i think they watch too much movies and don't get enough experience. some of the people -- seymour bolton had been in the field and seymour had been captured in the german war and put in the prisoner of war camp and organized it. senator church had been an intelligence officer in china. so they had firsthand experience. the idea in the 21st century that we have a war on terrorism, which is an oxymoron to me, which is ridiculous and it needs to be and should have been in 2001 a police action, police are under better control than the military because ike eisenhower who is emerging as one of my favorite presidents

understood the power of the military industrial complex and when you talk about billions of dollars and talking about political appointees, i was a presidential appointed senate confirmed, the average life of one of them was 18 months. i can remember at b.o.m. where i got to deal with wild horses, having a senior official who was supposedly reporting to me looking at me and said, look, i'll be here long after you're gone, so i'm not going to do that. so i think we need to think about an eco-system. but the problem with the eco-system that has developed in the security state, it is a monoculture and they don't survive very long. they do come in as an invasive species and take over the landscape and fail because there is a lack of diversity. each time i've worked in washington, seven different times, i've had a letter of resignation or had a conversation with peter where after i told one member of the committee that he was just not

reminded me that is not a way a staff person talks to people, i go back outside of the potomac village and i think of the potomac village or each of these tribes, there are more interested and this was true in blm in defending their turf for instance, the forest or wildlife service or others, that they are all mixed together. and another thing marg, i don't know if you're still here, the other thing i would disagree with you on is more people in the pie. when i came to washington in '69, there were 2900 people and today there are over 10,000. in the house over 10,000 now over 30,000. the 10000 included the library of congress. we've had this explosion of staff on the congress side and i would suggest to you with all due respect to your honor i do

agree the courts are a very good forward-looking statement adjudicate conflict but you need to have a congress that will be a congress. and i don't think -- the joke, when i was in blm, was there is only one system now and it is appropriation process, the authorization committees don't matter. but the appropriators, man, you kiss their ring, because they control your budget. so the only place i do want to talk specifically about the church committee is i think we had a unique opportunity and i think we took three-quarters of that opportunity. we did prove to the public whether there were abuses going on, assassinating foreign leaders, intel probe nsa probe, but what we didn't do in my judgment, which was a missed opportunity, was set up a predictable budgetary process and make sure the chain of command was traceable because we can see even today that the

agencies are so good at fluffing over things, that who is responsible for spending those dollars or who is going to be accountable. cia, walt was a historian. every time there was a covert operation, he had to write up a history report where he interviewed the people there and determine whether they were successful or unsuccessful. i think that kind of accountability, first internal to the executive branch and then in some way reviewable by an independent body, i think through citizens united i'm not convinced congress is going to be independent because of the money interest. when i ran against orrin hatch, the bus theory, he had to get hit by a bus before i would win but when somebody hands you a check for $10,000 or $20,000, it is not because they like your curly hair or irish demeanor, it is because they want something out of you. now that there's unlimited spending and unfortunately peter

makes good money off of this -- >> pro-bono now. >> but it is a system that is broken and we need to have some accountability. but finally, the most important thing is i teach at the university of utah and it is interesting to me to see -- i've been teaching for 35 years now how events that were real in my life, watergate, the impeachment of president nixon are now as relative to my students as world war i was to me when i was there age. and you could ask me at their age when i thought about world war i and i could give you some general ideas. we're failing in transferring the sense of responsibility. and some people have said, tom brokaw spoke about the greatest generation, if we don't change our way, we may be known as the least generation. i said this last night, and i'll

repeat it here as a young fbi agent, having read and internalized the reports that you guys worked so hard on, really set me on a course to keep the straight and narrow. it was nice to hear alex joel hear him say he has copies in his office and there are a lot of employees within the agency that want to do the right thing and want their agencies to be effective and efficient and we have to figure out a way to empower them and make sure they are able to work within the system so it can work well. and the commitment of this group people for over 40 years now is inspirational. thank you very much for the work you put in and continue to work in, and i'm going to continue calling you. so thanks very much to the kmch committee staff. >> and fritz and bill, if you

wouldn't mind standing. [ applause ] >> and of course, thanks to our vice president mondale and senator hart for coming this morning. that was a terrific addition to the program. and thanks to all of you for coming, and thanks to c-span. good night, everyone. this morning the confederate battle flag was lowered from south carolina state house grounds in columbia following yesterday's signing of a law by governor nikki haley sending it to a nearby museum. the ceremony airs on c-span at 7:00 eastern time watch it on c-span.org as well as the debate in the south carolina legislature. new york congressman steve israel, chair of the democratic policy and communications committee talks about the party's priorities for congress

the status of the budget and appropriations bills the possibility of a government shutdown, iranian nuclear negotiations and the 2016 elections. newsmakers cast sunday 10:00 a.m. and 6:00 p.m. eastern on c-span. >> here are some featured programs this weekend on c-span networks. upcoming release of harper lee's novel, ""go set a watchman," focuses on pulitzer prize winning novelist saturday night at 7:45 eastern. we talk about the impact of lee's book, ""to kill a mockingbird"" her life publication and events that led to discovery and publication of new novel. we'll also reair these programs sunday evening beginning at 6:30 eastern. also on sunday night at 10:00 radio talk show host hugh hewitt on hillary clinton's second run for president. on c-span saturday night starting at 8:00 eastern congressional commemoration of the 50th anniversary of the

vietnam war with readings and remarks by members of congress. sunday even 6:30 gop presidential candidate carly fiorina visits with voefters. merp history c-span tv saturday on lectures in history, flag ler college, factors that led to the great depression and president roosevelt's actions to help the american people and the economy. sunday evening 6:30 best selling historical knowledge on general sherman, the burning of atlanta georgia and columbia, south carolina, and why sherman is not the villain of popular legend. get the schedule at c-span.org. >> more now from this forum on intelligence oversight with former vice president walter mondale and former senator gary hart as they talk about their work on the church committee. one of congress's first efforts to reform the sbnl community.

the committee formed revelations about cia covert operations and domestic spying. >> good morning, everyone. thank you so much for coming. my name is mike german, a fellow for center for justice. i welcome you to strengthen oversight. this year marks 40th anniversary of the creation of senate select committee to study governmental operations with respect to intelligence activities more simply known as church committee after chairman senator church. it was the first and only comprehensive investigation of secret intelligence activities within the united states. this is one of a series of activities that the center has undertaken to recognize this

anniversary. we publicshed a report what's wrong with the fisa court with directors, they will be leading a panel -- two panels on executive oversight activities. we also published a report on strengthening congressional oversight signed by 18 church committee staffers, many of whom are in the room with us today and you'll notice that they have name tags on. so feel free to talk to them throughout the day. it also contains a forward written by two church committee members. the senator from minnesota vice president mondale and gary hart. finally chief council fritz schwartz has written a new book "seduction of government secrecy." the purpose of today's symposium is to examine how intelligence reforms instituted as a result

of the church committee investigation 40 years ago have fared and how they might be improved. when the church committee issued it's report, it warned recommendations for reform would be tested over time and that new national security threats would arise that could be used to justify new departures from american values in the rule of law. so we have it that chaos and shamrock and others replaced by stellar wind and score talon and fusion center, black sites and enhanced intelligence techniques. we're hoping a new generation of intelligence overseerses can been fit from the wisdom generated by church committee investigation and be inspired by decades of public service our guests dedicated to strengthening democracy. it's my honor and privilege to welcome vice president mondale senator gary hart and council

fritz schwarz. [ applause ] . >> i thought that i'd like to start by kind of knocking down some of the myths. one of them that i think was persistent during my time in the government as an fbi agent was that the church committee investigation took place during a period of tranquility. in our current situation, the threat is so high that we should put off any kind of comprehensive investigation so as not to distract those who are working to protect us from our important mission. but here just a few of the things that were going on. the united states army withdrawn from vietnam and the north vietnamese army started its final assault on saigon. the khmer rouge took over in

cambodia, king of saudi arabia assassinated. japanese red army engaged in bombings throughout europe, middle east, i.r.a. and ulster volunteer killing dozens in northern ireland and britain. abu nadal organization bombed flight from tel aviv to jfk killing 88 people. station chief was assassinated in greece, two fbi agents killed at pine indian reservation. a bombing by croatian nationalists at laguardia airport killed 11 people and puerto rican national killed four in a bombing in new york. so with this dynamic threat environment going on, how is it possible that the investigation began vice president mondale, and why was it necessary and why did you want to be a part of it? >> i think begin by looking at

seymour hersh's story, an explosive headline in the "new york times" that contained the list of abuses and dysfunction in intelligence agencies. a list made up itself that leaked and told the nation we were really in trouble. if you look at these problems you've cited one of the reasons why we had to reform and make the agencies more responsive was in order to deal with the threats that were apparent to the security of our nation. and i would say that there was a general agreement to that. i remember i was on the floor when john stood up and moved that the creation what is now known as church committee on the grounds this couldn't continue. i'm convinced mike mansfield saw

right away this had to be dealt with. so i think what we did could be explained because it helped prevent some of the abuses in the past some of the mistakes of the past that cost us dearly but also because we had to straighten this out and only announce a committee within the control of the senate could do it. >> why did you want to be on it? >> wow. well, you know i had followed this stuff as a senator. i had been attorney general in my state. i dealt with some of these issues. i sensed something was really wrong without being in on the inside. and when i heard john give that speech, i went to mansfield and i said, when you're setting this committee up, would you look at me? he said, yeah, i will. >> senator hart, you were a freshman senator, only three

weeks on the job at that point. how did you handle this kind of -- and given a prominent role as well as a drafter, primary drafter for the courts. how did you handle that kind of responsibility so quickly? >> well, i was not only a freshman senator it was my first month in the senate. i had barely met the other senators by this time. the answer to your first question is why do it now is why hadn't we done it before? first article of the constitution requires the congress of the united states to oversee the operations of the executive branch. all of them. it does not exempt national security. and from 1947 and the passage of the national security act, beginning of the creation of what's been called the national security state, which then incorporated -- began to incorporate cia and expand very

very rapidly there had been not only virtually but there had been no congressional oversight. so historically the question is between its work, and we could spend a profitable hour discussing how most members of congress did not want to know, and, in fact, said senior members of the senate had said i don't want to know. well, that's not what the constitution says. you have to know whether you want to or not, and so this was long overdue. >> and what did that experience teach you as a young senator how the government works? >> well i still tell student audiences that i'm the last idealiest, so when i'm gone there are no more. it was a hugely disillusioning experience, i would say particularly not just a

surveillance that went on under particularly the previous administration, but what came to be or what we discovered as the assassination plots. and then even worse the use of the as i of the mafia to try to carry out those plants against fidel castro. this opened up so many dark currents under our government. i've characterized it as a sewer under the city on a hill. and for a 37-year-old first term, first year senator, this was a great disillusionment. but i think in a way the work of the committee and our willing willingness on a bipartisan basis to make fundamental changes in the broadly defined intelligent sector was a triumph

of democracy. and a tribute to the 11 members of that committee and probably one of the best congressional staffs that has ever been put together in the history of the republic. >> fritz, you were the chief council of that staff. you didn't have any intelligent background when you were asked to do that job. how did you gain the trust of the intelligence agencies? >> how did we -- i don't think i'm very important in that. but we got it by first being determined that was absolutely necessary. and senator mondale had a great remark in which he said we'll just get extensions so they can't out last us. and showing the bipartisan nature of the committee, john towers said something like hallelujah, god bless you or something like that. and then, also -- in addition to being determined show that you

can reliably handle secrets. and the biggest there are legitimate secrets. i think our committee did that extraordinarily well. we had essentially no leaks and we made reasonable agreements with the executive branch about keeping certain things -- keeping secrets. and in contrast, the house committee foundered and faltered and failed because they never were able to reach -- refuse to reach those accommodations with the government. >> all right. and vice president mondale it's hard to keep politics out of politics. this was an investigation by politicians. what did you do to relieve any concerns that there was going to be politization or partisanship in the investigation? >> i think there ought to be a separate study of how this committee worked and how it was established and how it

approached its activities. because we did achieve, i think, a general acceptance as a committee that was truly bipartisan and was working with everybody to bring these results about. and i would start in that study by reading the following names. frank chuch chairman john j. tower, vice chairman. philip art, walter huddleston. gary hart. howard baker barry goldwater. matt matthias and richard striker. staff, bill miller, fritz schwartz curt smothers who i don't think is here. how did you get a committee like that? my answer is mike mansfield. he wanted this to succeed. and he wanted to set up a

committee that he thought could go through this huge explosive hearing, these process, and do what he knew would have to be done to work together and sustain bipartisanship. that worked. this committee was working together. there was a single staff. we didn't have a republican staff and a democratic staff. bill miller came off the staff john sherman cooper, one of the saints of the senate and also a republican. and he had enormous prestige in that senate as a gifted staff member. and he was able he knew exactly what had to be done. he was an old hand. then i think you'd have to say that the executive branch maybe with a little time but they

ended up in effect supporting what we were all doing. you have to give some credit to president ford who was not an idlog probably afraid of the concept but he wanted it to succeed. you had attorney general levi from university of chicago who became a tremendous supporter as the head of the justice department in shaping regulations and rules and became a believer before it was over. and so the contrast of this committee that worked together, excellent staff that provided that same background. and then the executive branch cooperating, not perfectly.

but when you think of what we asked them and what they delivered, one of the jobs i had was -- as chairman of this committee, domestic task force we called it, was to look into the fbi records. some of you were with me on that process. well, we were seeing stuff that had never been seen before. we were seeing a pattern of abuse. we uncovered, for example, the fbi -- it was really hoover's -- antagonism toward martin luther king. he was convinced that martin luther king headed a black hate group, as they put it. he had agents all over the place trying to find something on king to knock him off his pedestal as they put it. they tried to break up the

marriage. when king was picked to get the -- go to see the pope to get high international awards, the bureau tried today block that. they tried to in effect corrupt the public process and undermine and destroy one of the great leaders america's had. i think when this came out and we realized that this was not a process that let the public democracy work but in fact was process that was corrupting one of the most essential elements we knew we had something. and i think that carried the day. >> let me -- not heroes, certainly important figures i would add what fritz has said, vice president mondale said

director william colby. a very controversial situation for him. he was under enormous pressure from the cia not to reveal some of the worst excesses or i'll say excesses. but he made a decision to disclose to us in a highly intense session, long session, what came to be called shorthand the family jewels. it was in an inspector general's report that pretty much covered the waterfront of things that might be controversial or illegal, unconstitutional. he made a decision to reveal those to us. it was a monumental decision. it made an incredible difference in our ability to address the reforms and propose the reforms that we did. and he left the agency

eventually under great criticism from people who thought he should have stonewalled and chose not to. so i have always felt that he was a very, very important figure. >> another factor that was really important was the structure of the committee. as mansfield set it up it was six democrats to five republicans instead of what would have been normal seven to four. and john tower was a vice chairman and not a ranking member. and then the committee in its reaching bipartisan conclusions in a way our most important finding was that every president from franklin roosevelt to nixon four democrats and two republicans had abused their secret powers it helps us internally and externally to show that we were not being partisan in our major finding.