narrow 5-4 decision from the supreme court that partisan gerrymandering -- the supreme court ruled that partisan gerrymandering is not illegal under the u.s. constitution. justice kennedy was between votes. he did leave the door open to say there might be a case where partisan gerrymandering would go to far. i think we will see some cases in this round of redistricting on that very question. host: the next call is from new york on the independent line. caller: what role does the census play in redistricting? guest: another really time the

question. there are now three states, new york, delaware, and maryland that have enacted laws prior to this round of redistricting that they will take the census data accounts those incarcerated. three states have passed a law that they will adjust or change the census data before they do redistricting. new york, maryland, and delaware will be taking prisoners and moving them back to their original home of record. that is a really challenging implementation task for those states. a number of states will be watching maryland, delaware, and new york to see if they can do this effectively and come out with good quality data after reallocating prisoners. there are two states that adjust their census data for other purposes. kansas relocates military personnel and students.

the state of hawaii. allocates military personnel before doing redistricting. host: thank you so much for being with us to learn more about redistricting and help states are addressing it this time around. we appreciate your information. to our viewers, thank you for being with us. we will be back tomorrow morning at 7:00 p.m. -- 7:00 a.m. we will have live coverage of the rally on saturday. we have an interesting panel session coming up. it is going to last until 3:00 eastern time. it is at the museum. it is on criminal law, national security, and the first amendment. the executive director of the first amendment center is speaking now. we will take you there live.

closely with the national security group in our law firm. our firm and abbe lowell's of durham is cosponsoring with the newseum and the other groups sponsoring today's event. this building, in particular, looking out over the city with the first amendment inscribed in the marble in front of the entrance, it is an appropriate place to be to discuss our topic. i want to thank everyone who is here today. we have a lot of accomplished people in the audience, many of whom could be up here giving their points of view. we encourage you to come up with questions and interact with what everyone is saying. abbe lowell will be moderating the morning panel which will focus on the news media and

national security. baruch weiss, he will be moderating the afternoon panel which will be focusing on the investigation, prosecuting, and defending a national security case. i wanted to briefly describe my own odyssey with the intersection of national security and the first amendment that began in the early 2005. abbe had been representing the two aipac lobbyists under scrutiny for their conversations, meetings with government officials. the department of justice, u.s. attorney's office indicated to abbe that he could no longer represent both of the lobbyists. so i ended up taking on the defense of one of the two lobbyists, and then shortly after baruch joined our team.

in 2005, when the aipac lobbyists case began, i was invited to a small room to meet with the fbi, a number of agents, friends, officials from the department of justice. they played a few portions of these tapes of lobbyists meeting with government officials, talking about foreign policy. the government said then that the case was simple, involving conduct that violated the espionage act. we, the defense, said it was a first amendment case, a complex one about speech that the first amendment protected. the battle lines were drawn that

early. unfortunately, those many lawyers in our law firm, it took over four years of complex, cumbersome mitigation under the classified information procedures act, which will probably be discussed. about $12 million worth of big firm defense work, much of it for bono, to have the charges dismissed on the eve of trial. the federal trial judge in the case, judge ellis, he is a judge to whom i highly respect since my early days in the 1990's. he issued an important 2006 decision that the press has reported on and it is a public, like the decision on the applicability of the first amendment to the case against the aipac lobbyists. in that decision, the judge

first traced the historic importance of free-speech in a democracy, particularly in the area of our nation's foreign policy. without going through the decision, the first quoted james madison in 1822, talking about how a popular government need popular information. it also talks about connors to it, who in 1991, used words that were quoted directly in a statement. and judge alice concluded his decision in 2006 with the words -- judge ellis concluded his decision in 2006 with the words, "the time is right for congress to revise a law to

reflect a better balance between our nations secrecy and security, and citizen's ability to engage in public debate about u.s. conduct in a society of nations. " this was a difficult case. the next difficult one, the government should not have to endure what was in a back matter, five years of investigation, five years of litigation, prosecution. my hope is that panel discussion will build the framework that is already being constructed for revised laws and procedures related to classified information. these are procedures that could work for the next 50, is not 100 years, balancing free-speech interests with national security.

conversations could focus on the security process, oversimplification, improvement of the classified procedures act, and finally, what the judge focused in on, revising the arcane 100-year-old language of the espionage law. now i want to introduce abbe lowell. he and i shared a skiff in the federal courthouse in alexandria. we remain friendly route and united in our defense efforts. abbe himself is a terrific white-collar, trial lawyer coming here in washington, d.c. he has handled many high-profile cases, he has defended not only the two individuals charged with illegal disclosure of classified investigation in the

aipac matter, but he is also currently representing a state department employee whose case is pending here, also for similarly alleged disclosures of classified information. he wasn't a special ethics counsel in the house of representatives -- was a special ethics counsel in the house of representatives. he teaches at columbia and georgetown law school. thank you. abbe, it is your turn. [applause] >> if i could bring my panelists up, i will introduce them. then we will get into it. this is a strange program in the following way -- i can randomly picked six of you and have you sit in these chairs and we could have the same program. that is a wonderful resource to have, and we will do our best to

lead, but we need you to be leaders with us. joining me on the panel, to my immediate left, mark mazzetti, and intelligence correspondent for the "new york times." in 2009, he shared a pulitzer prize for reporting on the intensifying violence in pakistan and afghanistan, a finalist reporting on cia detention before that. to his right is my friend and a court reporter, walter pincus, the intelligence see a reporter for "the washington post." before that, and the editor of "the new republic." he has won the george polk award for journalism. in addition to being the amazing journalist that he is,

he also has a law degree. to his right is a cape schoenfeld, a senior fellow at the hudson institute who has written one of the most provocative and important books on some of the areas we are covering today called "necessary secrets." he has been widely appearing on programs, writing op-ed, discussing the issues that we will be discussing today. to his right is jeffrey smith, a partner at arnold and porter. former general counsel to the cia. current member of leon panetta's advisory board. he represents entities that we are discussing, including congressional investigation and prosecution. to his right, eric lieberman, vice-president of the general

counsel. before that, a litigator at the firm of williams and connally. before that, a staff to senator kennedy on capitol hill. quite a group to begin the conversation. i think we have to begin with the fundamental premise. the fundamental premise, it seems, to me is what is the role of the media fundamentally in the formulation of foreign and domestic information? what is the starting role? is it to be a member, watchdog, and after the fact watcher? walter, what is the role of the media in providing, becoming part of the sausage making process of the formulation of foreign policy? >> it is a little bit of both.

i think when we are operating the way we should, we should be covering people who are involved in the dialogue. public officials, hearings on the hill. we ought to report what is going on. but we also have a responsibility to find out for ourselves whether what is being said is the whole picture, whether what is being said is truthful or not. one of the things that has happened in the past few years, we have become more of a common carrier for the contending sides and have dropped the idea of doing original reporting, try to find out the truth. we do a lot of it from reporting in more areas, but the difficult thing is finding out what is really going on inside the state department, white house.

that leads you to this problem of dealing with classified information because it inevitably, as everyone involved in government knows, most of the things you are trying to find out have been classified. why they are classified, that is one of the great issues, and whether they deserve to be classified. given my view of the way it is done -- well, when i was much younger, i ran two investigations in the 1960's with senator fulbright. both involve dealing with classified information. we had closed hearings and then declassified them. the declassification process 40

years ago was a game in which if you wanted to do it, you spent time how much of the information was made public before come and you found out that a lot of it had, and then you found out that people classified, not based on whim, but there is no single standard. the last thing i will say is, in the hardest cases, we always have asked the government to advise us what to write before we write it so they have a chance to argue against it. and also, we do not steal documents. either someone inside government gives us the document or tells us information. if you want to protect your sources, you want to protect

those that have access legitimately. >> jeff, the administration is hypothetically debating a new surge in one of the areas of conflict for sanctions against a country adverse to the united states. there are a number of players involved concerning the right course, and what it should be. from the perspective that you had in agency, what is the role of the press, if any? >> i am tempted to say none. it has been my experience that much of what walter said is true. of late, the press has been a conduit of competing points of view within the administration. when one party wishes to communicate to another, get its

point of view out, the press is often a means to do that. that is unfortunate. rarely do very senior officials find this discussion of their policy options in public to be useful. it forces them to make decisions they may not want to make. skews the internal debate. it gets things out in public and people have to take positions that they do not like because they may be wishing to pursue a course of action they know will be politically unpopular, but the minute it hits the papers, they get buffeted by much broader political winds than what they saw as the focused national security objectives. having said that, there are lots of instances where leaks can be

constructive, but those in my experience are rare. >> i want to come back to that and ask you is there a difference in my two hypothetical, a difference in the press's role that might be more military, operational, compared to something that is just as sensitive but in a foreign policy perspective? >> perhaps. when american lives are at risk, they pursue a much higher standard to what they disclosed. host: is there a difference in the press's role, rather if the administration was having a new debate about if there would be a new project, a new banking bailout, and it is the same before the decision making event occurred, and there is internal debate. is there a difference there of

the presses roll when discussing classified information? >> i think the government has a strong interest in keeping its deliberations secret, but the press, i think, should give a lot of thought to publishing that information. i think there could be different kinds of consequences. i would also add, i think the press in recent years has not been very responsible in choosing published stories that have consequences for american lives. i am thinking of the "the new york times" decision in 2006 to unveil the banking system which started one of the counterterrorism programs. >> john has introduced the

phrase, we are going to hear it a lot today -- over classification. i do not know where you are on this but i am sure we can reach a consensus, given that any discussion, document in a pre- decision on basis, is more likely to become classified then not. that being the case, if there is the notion that over classification is a problem in itself, not that whether we have a good foreign policy in another country, the right ideas in the military, but just over classification, is it fair for the press to go after classified material solely to point out that that material should not be classified? >> i think it depends, obviously, on the substance of the document. our role in the issue of over

classification is what walter was saying, to serve as a check by reporting, in fact, whether or not documents needed to be classified. the other factor in decision making is whether or not it is newsworthy. i do not see a lot of value in newsrooms going back 20 years just to under the fact that documents were classified that should not have been. but certainly, if there is pertinent information that is currently classified and we can demonstrate it is in the public record in some way and there has been over classification, and it serves the public in some way, then i think it is appropriate. >> mark, if there is a common understanding that over classification is a problem -- i do not mean technically -- but

because of that, the free flow of information does not occur. is it newsworthy, is it a good target for the press to focus on? >> there could be a story about the ridiculousness about the over classification of something. i have seen stories of mine that were turned into a government document and then stamped classified. there is no question there is overkill. we have written stories about the inclination toward over classification, but i agree with eric. just for the sake of exposing it, there has to be a larger standard. we have larger fish to fry on the issues, what did the documents say, is there newsworthiness? just because something is

classified does not automatically mean we want to or should report about it. obviously, there is a lot of classified information that we know that we have not put in the paper because we have made the decision that it does not rise to that standard, or for some reason, would put lives in danger. so we are making these calculations every day. i will give you an example of the classification issues. one of my colleagues wrote a story about a book that had been going through the process of redaction at dia. he managed to get a copy of the original version and redacted version. he was able to compare the two, and you would be amazed at what was redacted and what actually slipped through the procedures, which was actually more

classified. i agree, there is no uniform standard, and that is sort of what we are up against. at the same time, we have to listen to the government on these issues. >> assuming there is an agreement on whether over classification is a problem, other than reporting on a case by case basis, do the reporters committees, other organizations, have a role outside of reporting to influence the decision of what should be classified, what should not be classified, and how that process works? >> absolutely. absolutely. what over cause of vacation does is we show disrespect for the

secrecy system and provides justification for those people who want to be truly sensitive materials. more power to those organizations when they push for better systems for declassifying, ending the problems in the secrecy system itself. >> we hear the phrase the public's right to know, the public's right to understand. does the public have the right not to know? if there is a subject of a certain sensitivity, that the public could be informed about, and maybe they would want to be involved at some level in the debate -- but by disclosing it, provide that information to enemies, adversaries, etc. is there such a thing as the right not to know? >> when you post that in your preliminary questions, i thought, no.

on the other hand, i think most americans understand there are legitimate government secrets. the difficulty is always trying to figure out what is a real secret from what is not a secret. i would not characterize it as a right not to know. there is an interesting contrast between our system and the british system. our system, in simple terms, the public has the right to know about everything the government is doing, except those things that the government decides are so secret that they need to remain as such. the british system works in the way that the people are only told what the crown believe they should be told. i prefer our system. >> we have programs that will be informative to the debate, but

generally, the impact of the press on the classification, the source of a discussion on any issue, it is a story by story basis. is there a role that the press could play on influencing the very decisions on what kind of information should be classified or not? >> generally, i would say no, that is not what we consider our role to be. primarily, i think the newspaper's role is to publish information that helps policy makers and citizens make informed judgments about how to appropriately our government is using the classification system, and that we publish opinions as well from people who can help inform the debate. the idea that actively trying to influence the government's decisions, not as reporters, but

as participants in a public policy debate, not something that we would typically think of a newspaper doing or thinking appropriate. >> back to my two hypothetical. a discussion among the administration as to some potential surge in a place where we have military troops committed. a debate in the administration concerning whether or not a country should have more or fewer sanctions. in that debate there are the following kinds of information in the intelligence community. there will be a military assessment on the search aspect. there will be an assessment as to whether or not funds would be necessary. an assessment as to whether or not the support in the united states for such a program exists. in the issue of sanctions, there would be a report as to who our allies are, what positions they take. there would be a report as to

whether or not a party sanctioned would have an impact or reaction. there is also in that grouping a lot of different kinds of information that will have different kinds of classification status. some at the highest levels, some at medium levels. i want each of you to address this at your perspective. do you have a way of distinguishing among the kinds of information that might be classified that you might feel comfortable understanding, soliciting even, and that which you think, it goes too close to some lines. >> i think after reporting in this area, the more you report on national security issues, you have a sense of what impact your story could have. you have a sense of the details be more sensitive than others. usually, the more specific you

get, the greater the risk. my inclination would be everything you listed, i want to see, i want as much information as possible. we will then make our decisions about publishing or not and have a dialogue about that with the government. after that process, we will no doubt probably hold some stuff back that we feel is particularly sensitive, and then we will do our story. the argument i would make is it would be a good thing. >> i agree with mark. there are two things we have to put into the mix. i always get uncomfortable when we talk about the press as the media because we are all different. it is not just that our

newspapers have different policies, but reporters have a different style, a different approach. the idea of rules does not exist. now you have the blogosphere, people putting out all sorts of information. that said, you do try to find out as much as you can find out, but i keep coming back to this point -- we can only find out people -- what people with access tell us. it then is up to the individual reporter, and the newspaper. we go back to the government agencies involved and tell them what we have been told so that they get a crack at making their

best argument -- and there is a history of this -- all the way from the editors getting a visit from the cia, editors going to the white house to let the president make the case. in the case of the post, i am sure it is the same in the times, we have a system, and there are plenty of protections for the government. we have been doing this for so long, we have been through the mill, as to what is important, what causes danger. the other thing is it has to be newsworthy. then there is this other thing where people tell us things they say are classified but turns out not to be true. in my case, most people i do not know that tell me things are classified turn out to be

untrue. >> not true factually or on classified? >> factually. classified is such an arbitrary thing. the dni has been trying to get commonality among the agencies, and they cannot even get that. they cannot even agree whose security clearance is good with another agency. this is an area where ketches catch can from a one. >> i gave you some hypothetical set with a degree of various classifications status of the material that is in the debate of each of those. should there be a different gradation of the involvement of the press in any of those, is it all the same? >> i am not in the news gathering business, but clearly there would be a distinction between those things that might be sensitive to the military and

those which may cause embarrassment to the government. if it were in the latter, i would be much less reluctant -- more reluctant to publish things that may put lives in danger. but listening to the responses to my colleagues, i have heard cases where the press has not behaved responsibly. just thinking this week, "the new york times" revealing the wikileaks document that was not redacted. it was a report by a low-level intelligence officer in iraq that suggested the three hikers arrested in a iran were actually on a mission to agitate the iranian government. this was published on the times website. i think that puts these people at risk. they are on trial next month. i think journalists are striving

for care but not always meeting the high standards that they set for themselves. host: jeff, you get a call -- >> jeff, you get a call from someone who says they got information from wikileaks that shows that the three hikers may have been on a mission to iran to agitate the government on behalf of the dissidents and they asked for their comment -- for your comment. this is one where you ask them not to use the information. what do you ask, what criteria do you use, and when you ever ask of those things of the press? >> my experience is the only way the press will listen to you is if you tell them as much as you

can. in my experience, the press, especially the ones represented here, are responsible. they will listen to reason but you have to say why. you have to say precisely why. in the example you just positive, what i would do would be to call my colleagues in agency, department of state, and find of exactly why people think they would be at risk. we would then sit down with the times and say here is why publishing this report puts them at risk. >> are you in a position of disclosing more classified information in order to hold the press from using classified information they have? >> yes, and i have done that. i am particularly interested to hear from general hayden at lunch.

he has done a lot more of this than i have, but that is exactly what you have to do. these are good, responsible professional journalists, and americans, and they do not want to do anything that would harm us or our allies. but that only works if you tell them what is going on. >> does it have to be high stakes? >> lives at stake, in terms of persuading the press not to publish something, that is the easiest. other things that are relatively easy, specific intelligence sources and methods. i have seen examples where the press -- none of these ublications, by the way -- release information about technical operations and then the next day we lose the ability

to collect that. that is the sort of thing that you have to do with the press, say, please do not say -- that intercepted communication from a x said y. x will then shut down the communications channel. you have to establish the ground rules at the beginning of the conversation that says we are going to tell you a lot of things that are sensitive, but we are going to tell you in order to persuade you why it should not be published. >> erica, so you are on the other side of this phone call. we know you have information, we know you are contemplating running it. we do not want you to, we want

you to delay it, what ever is in between those two possibilities. what is the criteria to about the way, from the media's point of view? >> " ultimately, it comes down to -- ultimately, it comes down to what we publish, if it would be subjected to by the administration. the debate in the newsroom over these sorts of stories are pretty vigorous debates about what is the public's interest. that is paramount, in our view. is there a way that we can tell the story that can convey the information that we think is important for our readers to know about how the government is operating, without compromising specifics?

we look card in each of these cases to find a way to strike that balance between providing our readers with the information we think they need with the kind of granular the we think it will give the credibility for readers, with at the same time, balancing the concerns expressed about specific things in stories, specific locations, names of people, specific methods. the hardest cases would be one where there is just a fundamental disagreement between the administration and newsroom. >> it is a negotiating process between you and jeff, on the phone or in person, dealing with what you might be able to publish, how you can publish it -- is it a negotiating process? >> i think it is. my role is much less than what i

am making it sound. >> i think you understand your role. >> if yes, it is a negotiation. >> -- yes, it is a negotiation. >> i guess it's sort of depends who is on the other side whether or not it is credible. the familiarity with a person will matter even if the information is the same. >> yes, it has been interesting for me to participate in these discussions, as a lawyer. it has been interesting to see that they almost have a sixth sense about the communication that is coming across the administration. as a lawyer, i would tend to

take things at exactly what they are saying. there is a lot of new ones in the process that i have grown to appreciate the day -- and they are saying no, but it is not really a hard no, and it depends who it is coming from. at least in our newsroom, there is a good understanding when you can go ahead. i think most of the times we end up in an o.k. place. but it is a new ones, fascinating process. >> dave, it is eight weeks ago and "the washington post" gets a phone call from someone in the intelligence and law-enforcement community. that person says there is a -- extra activity being spent looking at the vulnerability of the d.c. metro system.

this is a credible source, somebody who knows what they are talking about, and it affects, in the most obvious way, the livelihood and lives of the people who read "the washington post." the source indicates that this is coming from intelligence sources, law enforcement as well. what is the "washington post's" obligation to translate -- transfer information to put people on guard? how does walter know, when he gets that phone call, whether or not this is something the administration or intelligence community wanting to know as

official policy, or someone in the agency thought, my gosh, this is a dangerous situation. the people of washington need to know. >> how do you know that, walter? [laughter] >> you know by who is telling it to you. that is why we have our sources. the irony of the coverage that we go through, we do the same thing that the intelligence community does. we have sources, we develop sources. we learn to trust them or not. you cannot just accept what anybody says. you have to do some real work to find out whether it is true or not. >> do you have to have dealt with this person before you are comfortable feeling that the information that they are disclosing is credible?

>> i do. it is not as simple as people make it out to be, or as simple as some people do it. >> mark, even if it is someone you have never spoken to before but they have a high enough position in an agency structure, would that alone be enough to allow lee to make the decision that this was something that the minister should wanted to discourage harassed -- disclose? >> i would certainly look and to see if the information is

credible and then i would wonder why they are telling me. that would factor into whether i would publish or not. you are never going to go after what this one person just said and that is it. it is more complicated. it is not everyday that some high level person will call you out of the blue and give you some high level classified information. maybe you have to think there is a hidden agenda here. >> are you satisfied that you have found out the difference between the two weeks, those that are sat -- authorized and those that are not authorized? >> one of the many perplexities of our system, is publishing

information going to scare the public? that is a tough call. i am curious to know how the press would handle that. i do not think that the public needs to be fearful of going to work. however, if it is a real alarm, -- that is a tough call. >> let's go back to my hypothetical about a foreign policy debate within the administration -- something like sanctions. i want to take it out of the operational, military sense, and i want to look at it from the perspective of whether we should work with a country or two. you speak with a source. are you doing this in some sort of off the record, authorized way? do you ask that question, or do

you just accept, if they are talking to you, they want to talk to you and have the authority to do so? >> it depends on the person. we are all affected by what has happened to us in the past. everyone of us has a history, at least having done it so long -- but your instincts help you a lot. the question about sanctions, though, incorporates the question of whether or not sanctions ever work. it is more than just what that person is telling you. >> you would filter your willingness to report, a further explore, even on the level of your qualitative analysis based on whether the issue involved -- as you said, sanctions do not

work. would that make you more or less likely to cover this? >> it is not a question of covering this, it is a question of how you report it out. the question needs to be what kind of sanctions you are talking about. the abstract idea of applying sanctions to this country, where we have not done it before, to me, is not that important if you do not find out what we are going to sanction, how, and what we expect to get out of it, how many other countries have been sanctioned for such a thing. no sanctions will work by itself. so by that nature, you know that we would have had to tell a lot of other countries when we were planning to do.

>> we will leave the prosecution side of the conversation to the afternoon, but on the front end side of disclosure -- if an administration is dealing with a sensitive issue and the head of the agency wants to float the idea into the public to determine any number of things, to corroborate the information, to see how the public feels about it -- whatever might be a legitimate reason. so somebody would need to begin this conversation. that is a "authorized leaks of classified information." is it ever ok to have an authorized leak of classified information? >> yes and no.

[laughter] i have seen countless such instances in the department of defense where the secretary would call the assistant secretary and say, background the press on this, we have the assistant secretary coming up. he would them show them and read from the memos, circulating with the u.s. position would be. it would be selective to get out in advance what the position was. i have somewhere in my basement a newspaper of such an authorized week that i was a part of, directed by the secretary. right next to it was an unauthorized leak, and they both read basically the same. sources close to the administration today said x. in one case, they said it was okay that they got it out, in

the next, he was furious, and started an investigation. they get information, they published it. from the point of the efficacy of the classification structure, it is very destructive. >> but folks in our position chat with government people all the time, multiple times a week. they talk about what is important to the agenda of their organization, important to the agenda of the administration in dealing with certain things. on any given day, they would talk to people and pass it along. on another day, they would do the same. the problem came about that at some point, but they were being

told, -- what they were being told, it was authorized or prove or something, and then the next day they were told something else and it was not approved. they need to know the difference between what they are supposed to hear and what they are not. in my kitchen we have the thing on the dishwasher that says clean, unclean. from that point of view, how does a listener make that distinction? e listener.rd for th in the aipac case, that was one of the key issues. how did they know?

franklin, who pleaded guilty, did know. >> the defense department employee who was charged initially and then pleaded guilty, go ahead -- >> he acknowledged he was aware some of the information was classified that he ultimately kept in his home. so there was no ambiguity. on someonet granular like larry franklin. as i said, like larry franklin. he is in an agency, he has higher ups, colleagues, and on a particular day, hypothetical larry, see what this person has to say about this subject. no problem. another occasion is, larry is involved in the debate on such a thing, and makes a decision on his own this is equally

interesting, of the same benefit to the american public, and does it. his boss does not yell at him about it, and is glad that they got the feedback. now comes the third case. he makes the decision because the last time he did it he got a pat on the bat, but this time he gets indicted. how do we know the difference? >> i would be careful about getting written authorization for doing anything like that. without that, you are putting yourself at risk. >> jeff, in the time that you were involved in an authorized leak of classified information, did you get a permission slip? >> a lot of this was before e- mail -- [laughter]

y but it is mostly oral. they get instructions from more senior people but it is very difficult. in the case that you just posited, where that line begins and ends can be difficult because of the authorized leaks dealing with the same set of circumstances. if i could jump ahead just a moment -- think about bob woodward's extraordinary new book on obama's war. he had unbelievable access to a great amount of information. how are people and elsewhere in the government meant to know, when they read that book, they have documents to run their file that are still classified top secret, that deal precisely with

the secrets and facts that bob woodward, presumably, put up with authorization? maybe it is one of those things in our democracy that we have to accept. >> it is not just a question of authorized versus unauthorized. there may be an agenda of leaking -- which makes it more authorized -- but for instance, what is one of the most classified things the cia does? one could argue the predator campaign in pakistan. did anyone in this room and not know that the cia is involved in that program? and that the program has escalated over the montpast monh and a half? i think everyone knows that. it is not very hard to find

information on that, but it is a classified program. so why is it more well-known and why is it easier to report on? maybe there is reason for making it known there is an escalation of the program. i am just saying there are reasons for providing classified information and sometimes it falls into a gray area of why it is authorized. >> for example, let's use bob woodward's book. he figures out a way to get unique information that others do not have access to. it is clearly the tear that exists currently in a classified state. it is clearly material that, if someone in the government provided without authorization, they could be prosecuted, etcetera

the information is out there but he only has one piece of the story. so there is another side to the story. the ice has been broken. is there different analysis now, in terms of whether or not people are authorized to further discuss the issue with different classified information? >> i think the ice has been broken. the taboo when but i think the woodwork but -- the woodward book points to our problem. the obama administration has prosecuted four leakers. that is more prosecutions in 22 months than the entire american history. we only had three. at the same time, they are

allowing some high level officials to put highly classified information on the public domain without consequence. it is calling into question the integrity of the secrecy system and the legitimacy of prosecutions that may be necessary but appear to be critical. >> i have to point out for full disclosure that in my representation of a person that has been charged here in the district of columbia for disclosing information in violation of the espionage act, i happen to have written a letter to the people at the justice and the permit after the woodward book came out that said i do not get how you are providing this kind of detailed information to a reporter in the same branch has authorized the prosecution of a low level person for doing a far less thing. it is october 29. i have not received a response to that letter yet. we will see what happens.

what are you going to say? >> there is another practical one you can think about, which goes back to the valerie plame case. in which you actually went to court and found out that scooter libby was authorized to leaked classified information. it is unclear who gave him the authorization data but other people were leaking to us and nobody cared about it. when you talk about breaking the ice, you have to remember that this game up administration leaking things has been going on for years. i mean, kissinger -- going back to dean rusk, he would have people in every friday for drinks. depending on what is published, and this fits into your point

of view of creating openness, people who are on the other side of issues that the government was leaking, and it has gone on in every administration, then feel free because they know something that is contrary to that, whether it is classified or not, to leak it to get in a vault in the debate. it is the fact that people at a higher level, i will bet you if the republicans win the house or senate, you'll have an investigation of that. not because they want to find out the leakeer but because -- not because they want to find out the leaker, but because politically, it would be good. >> eric, let's step away from

the issue of classified information but, right back to it. the competition among the media in at 2010 is greater, i think, and most people think, than any other time, with all the various possibilities of channels and blogs and web sites. so to be the first is very important. and to keep up with whoever the competition is is very important. that said, as classified information become a singular kind of prize? people seem to get a lot a pulitzer prize nominations for being the first to disclose something that was from a classified piece of information. so wasn't that -- so is that sort of the golden fleece to be the first person on the block to have a story about the drones or a story about the detention camps? >> i do not think it is anything about publishing classified information that motivates the

news room. i mean, it might make it a little bit sexier to know that the documents are classified. but it really goes to the information that is in the classified documents that is going to dictate how much energy we're getting behind reporting and publishing something. >> is the mix of buzz that a story gets the issue? the demonstration is debating whether or not to sanction country x compared to the administration today is debating whether to sanction country x according to classified information obtained by the "washington post?" >> i think it does make these stories sound more interesting and authentic. so i think that adds a layer to the story. but honestly, and this may sound self-serving, but i think they really are more interested in what is in it rather than being

able to report that they simply have a classified document. at least that has been my experience. >> the first lead of the story you mentioned it sounds like an authorized leak. the second one does not because of the first part about administration debating whether to sanction china sounds like it comes from the administration to see what the chinese say. >> we talk about prosecutions and changes in the law. i keep using the word authorized and unauthorized with the not so clever use of my fingers in quote. the espionage act has a formula, and the formula starts with depending on which section it is, a person who is authorized to have the material makes it an unauthorized disclosure. there is also a section which talks about people who do not have authorization to begin with. so it is not just practically, but it is legally has an impact.

i want to turn to the use issue. all right, so you guys, mark and walter. you are doing a story. somebody's talking to you from inside the government. they want to talk to you about the information. and it is very clear that the subject you are pursuing is going to include classified information. it just is. both because of over classification but also because this has to do with the formulation of sanctions or something you just know has it. do you try to help the person and by providing information in a way that makes it easier for them or for you? for example, you could say to them, is there a document that says that? you could say to them, can i see the document that says it? or you can say to them, i do not want to see the document. i just want you to tell me what it says. do you have a methodology? >> we always want to see the document. sure.

you generally will find people will be hesitant to give it to you. some people have standards of i will show it to you but will not give it to you. i do not legally know the difference is. we want to see more. instead of having to take someone's word for it, we want to see what the document says. >> is there any level of classification on the document that you rather not know about it? if you see the document, it will say that it is a certain level of classification. some of it i am not even supposed to know the names of it, although i do. do you want to know that, or do you just want to know that it is classified? >> it does not much matter to me the level. other than something that is top secret is probably considered a bigger deal or more sensitive than something is secret. it is what is in the document that is more important to me. >> but then if you actually see

the document, you'll be immediately aware of its classifications that is as opposed to being described to you. you want that possible deniability? >> i think this standard is the same either way. we are going to protect the source. whether he is giving us classified or top-secret information, we have a relationship that we're going to protect the source and no matter what. i do not think it much matters the circumstances of the discussion. >> walter, do you want to see the document, too, or do you just want to know what it says? >> well, if there is a document -- there may not be a document. the information is what is important. the fact that you see a classification i do not think makes much difference. .ou're still going to go down you still go down the same path

of finding out. the document classified does not mean that the information is true or that it is in the public interest, and you need other people to confirm what is in a document. and that the document is a real document. the fact somebody gives you something does not make it a real document. this is my history of not trusting almost anything. [laughter] that is given to you. >> eric, walter strolls to your office and says that a source tells me about the sanctions or about this or that, and i can sort of look at the document or i can have it read to me or i can have its summarized to me. do you want to give them any predictions? do you want to say that you are the reporter, go to the source, and get to the document at all

costs? or you might say that it might be better to have an oral exchange. >> as a practical matter, those conversations did not happen. when walter walks into my office my heart's -- when walter marks into my office, my heart started racing. for a practical matter, i do not get involved in national security reporters to that level of detail about their interactions with their sources. you know, it is probably preferable to knock it a document. >> thinking ahead to the possible litigation, for example. >> right. if i am worrying about possible criminal prosecution, but you have to take a step back as a newsroom lawyer and recognize that the statutes say what they say, but the reality is the press. they have never been prosecuted for violating the espionage act for what they publish because of the things we worry about more

in these stories of leak investigations, more than the exact interaction and the reporting, something that is potentially technically a violation of the has been nosh act or a government statute or something like that. and really, the approach that think the newsroom lawyers that i work with have taken is a more hands-off approach. let the reporting be paramount, and the most important thing is getting good and accurate information that is in the public interest that we can defend in reporting at the end of the day. rather than micromanaging the conversations. >> i think rather than asking about getting the document, as eric will confirm, it is really what you write in your notes. because your notes become your document. and that becomes an issue. >> so just, on that occasion

which might be in a discussion with the agency head -- so, jeff, on that occasion which you might be in a discussion with the agency head and you are making a decision making role about the authorized league, the make the decision to provide access to a document when there is a document that could do the purpose as opposed to doing it orally? does that come up in the equation? >> it has on occasion. but typically, the instruction from the most senior person is to just background the press on this, and then there are some general lines are drawn about what you can talk about and what you cannot talk about. and there really is not much focus on showing them the document. it is a more general conversation. what happens is you put out a, b, and c, but they are smart

enough to know that there is more out there. so they will start calling around and look pretty soon find that. >> is there a difference in the conversation that you have with somebody who is your source in the government in terms of protecting that source win that source is providing you with what is either acknowledged to be or known to be classified information versus anybody else who is a source? do you have a different conversation? >> you have to ask it chronologically, before i got a subpoena two times. >> before subpoena. >> there are people you have regular conversations with. and a lot of those cases, you do not say i am going to protect

you or i will not give away your name. this is on a background, etc. post-subpoena, i will sort of wait till i get another subpoena. >> and do you volunteer that? in the context of talking to somebody who is quite obviously talking to you about something that is classified, because they admit it and it is obvious. do you volunteer any information as to how you are going to protect bedsores? or do you wait to be asked by the person talking -- and do you volunteer any information as to how you're going to protect that source? arkansas dewer for them to ask you? >> it depends if it is somebody i talked to regularly. it may come up or it may not. you are premising the idea that somebody is saying i am calling you up and this is classified.

most people do not do that. >> but they do say things like i shall not know this. or they do say things like i have read a report, and they happen to be calling you from the cia, so you could put two- and-two together. the context will indicate that it is classified. one of the questions is the volunteer or weight, but is it a different conversation you have with any other source just because it is classified or is it the same conversation? >> i think it is the same conversation. but the difference is, is that person familiar with how the press operates? is it someone in washington who deals with the press or is familiar with the espionage act? or someone who is outside, who is much more reticent to talk and much less familiar with all of this to be more inclined to ask you if they will be protected.

i think the people you deal with on a regular basis, if you develop a relationship with them, will know that and trust you that you will protect that information because you have in the past. i think the short answer is i do not have a conversation every time i get on the phone. wheat renegotiate it. >> you do not have a classified information miranda rule? >> no, is certainly not with anyone i am familiar with. >> eric, i want to understand how it works on the most practical level. you are general counsel in a major reorganization in a city that thrives on the disclosure of information that is not quite ready for prime time disclosure. some of it will be classified, much of it may be classified. do you have pre-sessions on any regular basis with your reporter staff, giving them the dos and

don'ts? >> from time to time, we have had seminars about the risks of national security reporting with our national security reporters, just so that they understand the gravity of the issues that can come up in the course of national security reporting. we do talk about the espionage act and the other statutes that can come into play. but typically the conversation is more revolved in the day, in around dealing with your sources. >> on a case by case event. >> yes, but we do talk to them generally about the risks, best practices, and from both the standpoint of what we publish, whether it exposes the newspaper to risk of some sort of prosecution, and then in the context of how the newspaper will deal with a leak investigation and what that means for your reporting practices. for example, do you put the names of confidential sources in

your notes? i prefer that you do not do that. there are rules that we require somebody else to do follow-up, but we do sensitize them to the issues. >> hold on to the thought of the general before and conversation. should media organizations have this rule book the the id to reporters when they come in to say here is how you deal with classified information? >> i do not know about the rule book. is i fascinated by the -- am fascinated by the conversation. a classic study of the espionage act pointed out that the espionage act itself is a loaded gun pointed at the media. and what is described are highly legal acts taking place for government officials are breaking their oaths of protecting government secrets and turning them over to journalists, private parties. so there is the law-breaking of

the leaker, and the lawbreaking under the espionage act of the journalist. of course there has never been a prosecution. i think the risks of a journalist are low, but the law itself is being violated. >> one of the interesting things about the aipac lobbyist case was that they were not the government officials at all. they certainly lived in the first amendment, both either because of the freedom of speech or because the right to petition the government, but they were not quite the media either. but many saw that as a way of if this worked and ended up as the prosecution with grit, that it was a smaller step to the issue of using that as a precedent. i think attorney general gonzales said that on a sunday morning show. >> the judge said it in his sentencing of lawrence franklin

the this applies to government officials, professors, and it applies to people who write books, and it applies to journalists who come into unauthorized possession, the loaded gun remains a loaded. >> sadly talked about the front and in a more perfect a lack -- broke pat -- we have looked at this in the context of the case by case issue. does a reporter come to you at the front end up having received the information and seek advice? does it depend on to the reporter is? is their policy about reporters doing that? or is it only when the stuff hits the fan and there is an investigation or subpoena? >> no, it is pre-publication. i am not saying that i agree with you about whether the law is violated by anything that we are doing. i think the first amendment would make it unconstitutional

to apply the has been the object to the press, and that has never been fully litigate it. -- the first amendment would make it unconstitutional to apply that in the espionage act, and that has never been fully litigated. there is the point at which reporters are either close to writing a story or have written a story and we're getting ready to engage in the dialogue that everybody has talked about with the administration. that is typically when they might lose in the lawyers. >> generally speaking, reporters that work in the organization know that if they are in receipt of something that is classified, that there should be a pre- publication discussion with somebody? >> well, i wish i could say that it is automatic, but it is not automatic just because there is classified information that we might be reporting.

we rely on the editors in the news room and the reporters to know when it is time to call in a lawyer and seek our advice. we do not dictate what gets published in the paper. but to seek our advice about the process and what we would recommend publishing or not. >> if there is a leak investigation, be it in an agency context, inspector general context, or even a criminal context, and they now issue of who the source is, where the information is, if the media organization retains a document -- if that all comes up, has there been a change of the last 10 years? it has been pointed out that there have been four prosecutions in the past 22 months, more than nine the prior 90 years under the espionage act. -- more than there has been in

the prior 90 years under the espionage act. is it that we're not talking or that we're not giving? the best way to get what we want is to hold us in contempt and we're happy to be there? >> i think that oversimplifies the. the bedrock principle for our news organization is that we do not break promises to our sources. and the second part of our approach in these things is if there is a way to avoid a confrontation with the government in this context, knowing that the law is not as protected as we think it should be for reporters, that we have to work hard to find a solution that allows us not to have to break a promise to a source but to provide information if we can that will eliminate the need for a confrontation over the subpoena. that is not always available. but those are sort of the two

guiding principles. >> is it only based on keeping the promise to the source? what if the source does not care? >> i think that is something that we learned. i have done this with walter. in its bitter libby -- in the scooter libby case, at least to the investigation was presented with written waivers from sources that said i hereby release you from any promise of confidentiality. and what do we do with these waivers? we're looking at them, and the senior editors, the publisher, walter -- do you credit the paper waiver alone? were you know that under the circumstances under which they were signed, employees were probably told either sign this waiver or you're going to lose

your job. is that truly a voluntary waiver? >> and let's even assume it was. that is an important distinction, whether it was coerced or pressure. you need to factor that. but do you have an obligation for all the next sources that may come down the pike to hold on with that, notwithstanding that any one source says to go ahead because it is a crack in the wall which can turn into a bigger crack, which can turn into a bigger crack. >> resort to put the paper waiver aside and said that we need -- we sort of put the paper where aside and say that we need to find out if they are truly releasing you from confidentiality. you have to look at what the circumstances were. in the plame investigation, we did reach a high degree of confidence that they did want to release to reporters to testify. under those circumstances, whether you're protecting? and in the source is releasing

new, asking you to cooperate -- and then the source is releasing you, asking you to cooperate. at that point, why resist? >> we talked about the espionage act of 1917 as the principal law by which leak investigations and prosecutions still occur under the frame of espionage. it is used as a leak statute as often as it is used as any other purpose. is the present scheme of statutory, regulatory criminal laws the right scheme? if not, what should be done? >> that is the question that i am glad you have gotten too. the current as be announced statutes today from 1917 that are based on some earlier statutes, and in many ways the language is out of date, and i think some of modernization could be useful.

but it also could be very dangerous. from the point of view of the executive branch, my experience is that the existing statute works to prosecute people who leak truly classified information. as you know, there is the said committee in the senate judiciary committee that has instituted a look at statutes to see if they can be modernized. some minor tweaking may occur. but also worry about going too far one way or the other. and the first amendment is precious to all of us. and i think we need to be very careful as we think about modernizing the statutes. one final point, and i look forward to everybody's discussion, is the wikileaks case. and a question in my mind -- it is not a question. i think if we got a hold of, in

some way, saenz, i think a strong case can be made that he should be prosecuted. it is hard for me to argue that he should not be. but that is a different in many ways from what the papers have done, even with the documents they got from him. it seems to me what he did is so -- maybe as early ahead of my brief here, but it is hard for me to argue that what he did is not a crime and we shall not seek to prosecute him. >> is the present statutory criminal law scheme sufficient, even if old, and if not, how should it be changed? >> actually, the pentagon papers case, six of the nine justices that if the case came to them after publication, and it was material that was classified, they would uphold the conviction under the espionage

statutes. >> the american samoa cannot statutes themselves -- >> i did not mean to confine it to the espionage statutes. start there, but talk about the regulatory scheme in general. is it working fine? should it be changed? >> i think it is not working so well, but changing it can be dangerous. does senator shelby want to have a law that punishes all disclosures of classified information? i think it would be difficult and dangerous given the amount of over classification. i would not go in that direction. the morison case, the one that was first convicted, and the aipac case when a great distance to clarify some of the difficulties in the espionage statute, so we understand that that makes them more workable. the one area that i would try to strengthen the integrity of the secrecy system is to have a more

fluid it whistleblower protection act. so that leakers would have no excuse to go to the press. that would have a thorough process for their internal grievances or evidence of government illegality. >> so there would be a place that they could take those inside the government that would be as effective as bringing it to the attention of walter or mark? >> the question is whether the intelligence committees are paying sufficient attention and if there is enough over said. that is part of the problem. it is not necessarily paying attention enough when whistle- blowers' come to information about wrongdoing. >> let's see what everybody here things on the things we have talked about or those things that we might not have gone to

that you hoped we would. we have microphones set up so that it gets onto the taping system. please come to a microphone. >> thank you. i have an unusual perspective. i am former national correspondent and journalist newspaper editor. i changed careers and retired recently as an intelligence officer for the department of common security. given that background, i have seen, under the tent a both of these areas, and in fairness to the government side on over classification, it is not about laws or authorities or such. a actually, for the past two administrations, bush and obama, a presidential directive in office set up in the white house and the director of national projection to create more sharing, all of those information-sharing in the shins.

there legally, technically, governmentally supported. but the problem, in my observation, is cultural. there's a cultural element that we're fighting the people often do not realize. if you go to the average intelligence office, you'll see three or four different computer systems on every desk. there is unclassified, sigrid, a top-secret, and god knows what on the other one. the buzz factor that was mentioned earlier about the press having a sex your story if it is taken for a classified sources -- about the press having a sexier story if it is taken from a classified source, and sometimes it can be accidental. i once received, in the spirit of being more open, this executive had planned a session like this where there was going to be an open discussion of some issues about homeland security. i noticed that she created it

on the secret system because that is where she worked, so it came out classified secret. i said that is an interesting idea, but i think you're going to cut your attendance at dramatically because it automatically said secret. so that cultural barrier. there are many cultural barriers that stand between us and what is next. >> the issue of the cultural barrier, does anybody have a comment on it? >> i am a former reporter, and i have been involved in litigation in this area as a lawyer. i guess, the first, doubled like to make -- >> we tried to ask the people to ask the panelists questions as opposed to making comments. >> it is partly a question. and the pentagon papers case, i am not sure that having a better whistleblower system solves the problem of the public becoming involved in the debate over the

basic public policy question. but the real question is, we're looking at a group of people in a rather pristine situation. national security reporters and news organizations that regularly deal with national security and the government. but they are not the only people that get classified information, that it leaks. -- that get leaks. when a reporter from the paper that the cia does not know calls up with information, do they get the same treatment that the post does? >> that does not happen all that often. it sometimes does. and it would be a case by case decision that is made based on whether we have any hope -- how serious the information is and if we have any hope of persuading him or her not to publish it.

>> also, it is a new era for us as well. we're not going to put a story of the publishes the names of the last five cia station chiefs in an islamabad. we know who they are. however, if the blogger knows that information and puts it out in the public, they may have a dialogue with the public, may not. where does that put us in a decision? do we then report on what was reported? do we keep the original standard we had? i think that is a somewhat murky area. >> i think that is a critical question, and one we have not had much of a chance to talk about. >> and it raises something the media is talking about in other contexts, which is at the different forms of media we have now and the lack of barriers. wikileaks is an example in part. >> i am from the university of

southern california. i have been in journalism for decades. the journalist perspective was summed up by saying i want to see it all, and then we decide. let's go beyond the "new york times" and "washington post" and it to wikileaks and other sources. how does that not inevitably lead to wikileaks and the disclosure of powerful information if there is no other limitation? >> gabe, take that first. now that we're changing the world, how you make that distinction? >> we have never had a prosecution for publishing classified information. during world war ii, there was information published suggesting we had broken japanese codes. the prosecution was a drop because it appeared that the japanese had not taken notice of the story. [laughter] had they taken notice of the

story, it might have changed their occurrence. in any event, there is a theoretical possibility of a prosecution of the press. the prosecutors obviously have to use their discretion. you have standard practices described by walter and mark. they are unlikely to provoke the prosecution. you might have a domestic wikileaks that would be prosecuted or the disloyal paper. or you might have a publication that hires american contractors to write their newspaper, and they start extracting classified information from the pentagon. >> does that scare you guys to get when you hear about all the procedures that exist in the traditions of institutional media organizations now being victim to prosecutions based on whoever can get access to the

internet and become a media organization and do things that were never clear eric's point of view? are you worried about it? >> again, if they steal it, that is one thing. if they get it the way we get it, if somebody breaks their oath and gives the information, i mean, the only thing that -- i mean, the web does not totally scare me. what scares me is they put out information that turns out not to be true but people believe in it. and there is a demand for publication. but i do not think it is going to -- i hope it does not move us to do the same thing. >> on the wikileaks case, there was part of it over the summer when the "new york times" got a hold of a large amount of classified information about the

war in afghanistan, and we had the decision of what to do with it. our decision was that wikileaks or wherever they got it, they're now source of information. we will take the information and digest the information. first of all, of whether it is credible. we could have gotten stuff that was made up. we have to first find out whether the stuff is true or if it is real information. we determined it was. then we determine if it is newsworthy. we determined it was bid up the was also the calculation that wikileaks was, given their history, they're going to get the information up. so we will do it in our own way and go through the information and decide what we are going to publish. >> i am television reporter here in washington. it was briefly mentioned about it be not so much about having a classified document that makes you nervous but what you put in your notes.

do you keep your notes or do you shred your notes? >> and when? >> exactly. [laughter] >> i have to speak to my lawyer. [laughter] >> i do not reveal sources. >> you do have a fit the menin right here. -- you do have a fit the amendment right. [laughter] >> i generally keep my notes because i deal with things that people argue about whether it is true or not. i am worried about the truthfulness of it. and thank god, it is very useful. but i note people -- but i know people are about shredding. i do not believe in and shredding or having secret meetings are being worried about phone calls. >> i suppose that from the point of view from the litigation side and the resistance a media

organization or a reporter would put up to not reveal anything, there's not much of the difference between getting him to talk compared to providing his notes. i suppose that is going to be on the same basis. on the prosecution side, what is interesting to me is that, remember, the espionage act as a provision which does not prosecute the disclosure by prosecutes the improper retention. so if you had a document -- the camel's knows maybe in the retention prosecution as compared to a disclosure one. >> i coordinated government initiatives. you asked about the regulatory framework and whether it works well. i wonder about the implementation of that. how does the practice work? does it work well? does the negotiations work well? is there something about the way

this plays out that you would like to change? >> do you mean in the way that jeff and eric was discussing a piece of information or do you mean the way prosecutors to discipline those who leak? >> i mean, if there's one thing you can change about the way this plays out. >> and to see if the reporters have a different point of view. is there anything you would change? >> i think it works quite well. the frustrations i have had, frankly, have been with journalists who were not responsible and not responsive. my experience over time has been the journalists, when told about things that they should not publish and are given a reason to not, just cavalierly put things out. they're very few of those. i think one thing that does

worry me about the new media is that because there is so much information that is so readily available, we will have more which the late problems. from the government's point of view, there is a need to share information to connect the dots. and the countervailing pressures within the intelligence community to not share information because we do not want another wikileaks case may mean that less information is shared and we may be put a greater risk because people cannot connect the dots. that is a very real worry in my mind. >> eric, is there anything that you would change? >> iowa agree with jeff. -- no, i agree with jeff. i think the process works well. the times of the process is frustrating is if the administration is unwilling to

engage in a serious discussion. that is a very frustrating for the news organization. i think if you read bob there iss buook, information about the time before published the mcchrystal report. and there were desires to get engaged on what issues would be posted on the website. fortunately, there was a good healthy discussion and we worked out what we thought was a good compromise. but if you cannot get that conversation going, it would be very hard for the news organization to do what would be responsible if we do not have the information on which to make an educated decision. >> on the flip side, one area i would look for is more transparency from the media about decisions to publish.

think of the extraordinary cases. for example, the wire tapping story that the "new york times" got in 2004 and sat on for a year. and then turned around and published it in december 2005. they wanted to understand the decision. the authors of the editors were stonewalling him on the explanation. one of the two reporters that wrote the wire tapping stories that one of the factors in the publication was the fact that his co-author had a book coming out the following months. and they had the the danger of being skewed by their own reporter. -- and they have the danger of being scooped by their own reporter. there needs more transparency by the media. >> one more question. >> i think -- these

negotiations happened before got to the "new york times." but it has been said that the story approved for there was significantly more information over the course of the year that made them more confident about writing the story. he has said that several times. >> i am from germany, public broadcasting. i was wondering whether the development of online journalism, but in a general and the web sites of your own papers, puts you under more pressure to come up with a story quicker, faster, along with a picture, tweet, things like that? >> there is more pressure. we're writing for the web and different platforms. i think we are a little bit more insulated from it than political reporters where there is a lot of pressure to blog and tweet

and do all this stuff that they have not yet come to us to ask us to be blogging every day about these issues, and we are given more time to develop stories. but it is only a matter of time before we are all doing it. but so far, the pressures are not as bad. >> so this could go on, and it will. partially overlapping this afternoon with a bunch of new topics. but for the moment, please thank all of our panelists for making this such a great panel. [applause] >> somebody is going to come and tell us how to do this, but we're taking a break for lunch. then the general will speak after people have had their lunch and come right back. please enjoy the rest of the program.

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> we're bringing you live coverage of the discussion of "criminal law, national security and the first amendment." is hosted by the first amendment center. they are taking a short break right now. about 15 minutes or so. when we come back, we will hear from a former cia director. after him, the topic will be prosecuting and defending cases involving classified information. we will have more live coverage from the newseum here in

washington in a moment. midterm elections are four days away. we have been joined debates from key races around the nation. tonight, there will be the candidates for colorado governor at 8:00 p.m. eastern. we got a look at the race and a preview of the debate on this morning's "washington journal." joipping us this morning, the theme seems to be to quit or not to quit. let's start with florida. that senate race. we've heard the headlines and the news that supposedly former president bill clinton asked meek to step down from the race. he said it was actually former governor charlie crist that asked him to step out. so the chris campaign seesed the poll. it was high in the double

digits or high single digits, whichever poll you believe but if t only way he can win is if he gets meeks to drop out and do the late-surge or hail -- you look at how many voters are casting their ballots for candidates who have shown more -- their beliefs in their views and chris has seen the nuns and think it is only way he can pull off the upset is if he can get the democratic vote and enough of the independent vote and told rube yo to just get into the republican base, butt it looks like he aveiled and with meeks still in the race and as defiant as ever, it looks likes an increasingly

lost cause for the cyst race. host: what areas of florida will you be watching? caller: the biggest is the i-4 corridor, charlie crist's base. if he can't be leading or isn't leading in the contaminate parks ain't -- there's no way he can win. rube yo needs rack up the large numbers in the rural parts of the state. northwest florida, the panhandle. but cyst needs win his base. if he doesn't, it's game over. host: it says tom tan creedo, the former -- tom tan cade yo. is pressuring dan maze to get out. why? guest: well, the interesting thing about this race, the candidate do you have worst vote total for a major party

candidate in quite some time and creedo is a -- what is increasingly seen as a non-viable candidate to have a chance at winning it. the republicans are looking at tancredo as a real candidate and another has strong favoribility ratings and has been playing preventtive defense, believing there's no way they can get a majority. and if you look at his majority in the -- from the democratic side, not from hekken looper. so i wouldn't expect hekken looper to go on the attack much. if he does, that would suggest this race is tightening. host: so what are you expecting

between tom and mays? >> well, tancredo needs to disqualify mays and get across that he is the really republican candidate own though he's running on the constitution platform. if dan mays even gets 57-7% of the vote, it's going to be i mean possible for tancredo to have a chance against hekken looper. even to closest polling isn't going to necessary state a rebound -- the republican against senator michael bennett. this could be one of the tightest races in the country. at least as far as the u.s. senate campaigns are concerned and could be a long night on the nine west counting the

ballots if it does emerge to be a close race. john with the hotline, thank you. >> thank you. john with the hot you. >> thank you. >> again, the colorado governors' debate is tonight at 8:00 p.m. eastern. we will have live coverage of it here on c-span. backlight to the newseum in washington where we have been showing you and a forum called "criminal law, national security and the first amendment." when they come back, we will hear from a former cia director. he will be the luncheon speaker. after that, the topic will be prosecuting and defending cases involving classified information. we will have live coverage of that here in just a moment. it now at the race in indiana's

second district. >> c-span is traveling the country, visiting congressional districts to look a the most closely contested house races in the midterm elections. >> we are literally drawing the attention of the country into a grass-roots race into the 39th seat to make sure nancy pelosi is removed as the speaker and that this seat makes a difference in congress and in the actual policy and direction the country will go. >> they want economic security for themselves and their families. economic security is a good job and decent health care. to many residents of our state have lost insurance because they have lost their jobs or premiums are too high. or they have a pre-existing condition and were never able to get coverage in the first place. >> the incumbent in this district is a democrat. he has been in the office for two terms. the is widely considered to be a moderate democrat, part of the blue dog coalition on the

democratic side. but the republican and is a state representative running for congress for the first time. every kid did it without hesitation says that jobs and the economy are at the top of their lists for this race. and i think that the constituents in this district would definitely agree. it is a district that is dependent heavily on manufacturing. it has been hit hard during the recession. obviously, an elkhart, indiana is a town that people know coast to coast now because the trouble that they have had their in the rv industry and try to rebound from the recession. president obama has made several visits to elkhart, indiana, and it has put it on the map as an area of the country that has had a difficult job during the recession. >> i moved to indiana from seattle. seattle was a little more

insular and less affected by the economic downturn. but here in india, i have noticed tons of businesses have closed. -- but here in indiana, i have noticed tons of businesses have closed. there's a lot of joblessness. i have heard that crime rates have gone up. it is a difficult time for our country. >> i hear that it is jobs. it is the broken promises right now. a lot of people are disappointed that barack obama came here as president, and he kicked out the stimulus package year and promised jobs. all they have seen is broken promises, unbelievable and unemployment rates, and the terrible things that have been at reported about the stimulus money. that it tried to leverage jobs. it did not leverage jobs. now we see that stimulus money went to prisoners and two dead people. and we send money to china. this is a topic number one.

we're seeing unemployment rates equal to if not greater than the 1930's. people are tired of it. >> as your congressman, i voted to stop increases in medicare premiums, close the gap in medicare prescription coverage, and i always voted to protect social security. i approve this ad because governments should never put our retirement at >> he has been focusing on social security as one vulnerability for republican candidates. she has said in a few interviews and questionnaires that she supports the idea of privatizing social security very she has command and clarified that she does not think it should be a wholesale change right away, that the seniors today should still be entitled to those benefits of that were promised and they paid into it. . that is one area she has said

she wants to privatize social security so she has had to defend herself on that point. >> right now the biggest issue i have his health care reform are i am really worried that with the new election coming up, that that will get a this r-rated. i work at a clinic where i'd take care of young adults. >> i've got healthcare made coverage more affordable. it covers pre-existing conditions as mentioned and is also an extraordinarily helpful for seniors . >> i think it is competitive because the incumbent is a moderate democrat running in a pretty middle of the road

district where people are conservative about a lot of fiscal issues. just the way the government has spent money on the stimulus and gotten involved in the bankruptcy for general motors and chrysler and health care reform, those are big issues that make a significant portion of this district uncomfortable. there's are issues that he has to explain to the constituents why those were good for the district and why those were good for them and his opponent is a republican running in a republican year. she is running an anti- incumbency year. those are issues you can really hammer on credit he has to defend those big-ticket items he voted for. he has to convince people that the federal government and the nation are on the right track with those things he voted for.

>i think it is representative of what a lot of people are calling the narrative of this election year where incumbents that were previously very popular and completely secure in their seats like a joke dolly who want to slice three of the votes in 2008 and his seat is in play just two years later. it might not be important for the rest of the country but it is representative of this larger narrative we are seeing play out across the country where republicans are gains and democrats are having trouble convincing voters that the current path we are on is the path that we should stay on. >> leading up to the november 2 elections, we are travelling the country and visiting congressional districts where some of the most closely contested house races are taking place. for more information on what the local content of vehicles are up

to, visit our website c- span.org/lcv. we are back live at a forum on criminal law and national security and the first amendment after a short break. the former cia and nsa director, general michael hagan will be the speaker this afternoon. when he is done, the topic will be prosecuting cases involving classified information. we will have more coverage for monday newseum in washington in a couple of minutes. [no audio] [general chatter] >> we are waiting for the

resumption of this forum on criminal law, national security, and a first-aid not -- first amendment. the economy grew slightly faster than expected last september. present obama spoke about the economy a couple of minutes ago in beltsville, maryland. [applause] >> hello, everybody. good to see you. thank you, thank you so much. everybody, please have a seat. it is wonderful to be here stromberg metalworks. i want to thank our hosts for their incredible hospitality. i also want to note your great

senator from the state of maryland, ben cardin is in the house. give him a big round of applause. [applause] your other senator could not make it but wanted me to say hello on her behalf as well as the majority leader steny hoyer. they are all incredibly proud of this amazing facilitate. i just took a tour with bob and saw a little bit of what you guys do here, i saw the workers turning raw metal into sheets, bringing it into finished products. everybody here is proud of what they do. and it shows. in the great work that you do. this is a company with a proud history. paul stromberg, a former navy metalsmiths founded the company in 1940. in 1958, a young, former

marine,bob, came on as chief engineer. nearly 30 years later, bob bought the company and today it is in its 70th year of operations and it is employee- owned and continues to grow. we have a unionized work force where folks who put a hard day's work get a living wage that allows them to support a family. this is a community business or even during downturns and tough times, people are looking out for each other. it just described, i think, what is best for america and what is best for american businesses. we are very -- we're very proud of you. it is an all-american success story and i am proud to be here. [applause]

>> this morning, we learned our economy grow over 2%. we have had nine consecutive months of private sector job growth after nearly two years of job loss. as we continue to dig out from the worst recession in 80 years, our mission is to accelerate the recovery and encourage more rapid growth so that businesses like this one can continue to prosper and we can get the millions of americans who are still looking for jobs back to work. governmentieve that can or should guarantee the success of this company or any company. or anyt think bob business owner expects the government to guarantee success. success has to be earned. s to be earned the old-fashioned way through great ideas, hard work, great employees.

that is the american way. there are times like in the past few years when our economy is hit with as devastating a blow as we have seen when credit is frozen, when demand is stalled, that we have a responsibility to offer temporary and targeted incentives to spur investment, to knock down the barriers that stand it your way and to help create the conditions you need to grow and to hire and to prosper. that is what we have done. since i took office, we have cut taxes for small businesses 16 times in. 16 different tax cuts for small businesses. instead of providing tax breaks for companies that are shipping jobs overseas, we are giving tax breaks to encourage companies to invest right here in the united states of america in small businesses. , in clean energy firms, in

manufacturing, in businesses like this one. we have taken steps to expand lending to small businesses which even with good credit, continue to have difficulty borrowing the capital they need to grow. it has been just over one month since i signed the small business jobs act into law. in that month, just one month, through just one provision in that bill, the small business administration has supported nearly $3 billion in new loans to more than 5000 small businesses across the country. that is fast. we expect that when all is said and done, these steps will help support tens of billions of dollars in loans to our entrepreneurs so they can expand, they can grow, they can hire new workers in communities like this one. that same also accelerated $55 billion in new tax relief for businesses that make job creating investment over the

next year including by extending a provision in the recovery act called business expensing or bonus depreciation. this is a pretty simple concept. it allows a business like this one to immediately deduct 50% of the cost of certain investments like movie equipment. i was talking to bob and he said he has to buy a new piece of equipment for this plant basically every year. the reason this company is able to compete against low-wage countries, non-union work force is because it has better equipment and has got more skilled and better workers. that is the reason it succeeds. [applause] what i want to do to accelerate this recovery is to allow businesses of all sizes to immediately deduct the entire cost of these investments, 100%, all next year through the

end of 2011. that means that business owners like bob who decide to upgrade their plant and equipment, that means they are able to write off immediately the depreciation in one year. that means that they will have additional money to invest in workers and in other plants and equipment. let's take the example of stromberg - let's say a similar business is going to buy $1 million in similar shop equipment next year. it might only be able to deduct the amount of that equipment over the course of several years. under this proposal, businesses like this one would be able to deduct all the $1 million next year. that a seller its hundreds of thousands of dollars in tax credits, real money that businesses can use to expand or hire new workers. this is not a shot in the dark.

this is a proposal that were that works. it will accelerate $150 billion in tax cuts for 2 million businesses large and small around the country. it would temporarily low as the average cost of investment by more than 75% for companies like stromberg creating a powerful no incentive for businesses to invest right now, perhaps about $50 billion which will generate more jobs and more growth. this is a good idea. it is a proven idea. is an idea that will allow more "equipment to be purchased and eventually more folks to be hired. it will put a dent in the jobless rate that we have to keep on working on because it is way too high right now. i know we are at the height of political season. i just had my god show me a little button showing me he had already voted, early voting. i hope everybody else is using

that as an example. it is political season. political season will be over soon when it is, all of us will have responsibility. democrats and republicans, to work together wherever we can to promote jobs and growth. the idea i am announcing today is one that both democrats and republicans should be able to support. in fact, republicans actually offered this idea in the past. it is a simple proposal that will make a serious difference for this company and others like it. it will encourage business investment right now. it will create jobs right now. it will help our economy grow right now. when many of our friends and neighbors are still navigating through some tough times, that is what america needs right now. when i hear bob and patricia talk about their lives together building -- helping to build

this company, i am reminded that this country has been through tough times before. we have weathered tough times before. it is precisely in those times that we recruit, we reinvested, we retooled, and we rebuilt. it is in those times that we recaptured the ingenuity and the resilience that makes us a great people and makes this a great country. that is the spirit we have to recapture and a leash once again. it is a spirit of optimism and confidence and hope that maz-mat america of the most dynamic country in the world. standing here with all of you, i am absolutely convinced that there will be brighter days ahead for america, and america were businesses like this one are leading our economy forward at workers like all of you are rewarded for the work that you do. where are middle-class is growing again and investment is being made here in the united

states again. the american dream will be back within the reach for all who are willing to work for it. we are forging our future the way you forge your steel right here with hard work and sweat and american know-how and ingenuity, cooperating together and working together. that is how the folks who came before and built the first american century in plants like this one, that is how we will make sure that the 21st century is an american century as well. thank you very much, everybody. god bless you. god bless america. thanks for the great work you do. [applause] thank you] >> the president earlier today. we'll go live to a discussion on criminal law, national security, and the first amendment. the luncheon speaker is general michael hayden. >> have a healthy respect for the first amendment and have a healthy respect for the role that a free press place for a

couple of years back, 12 of us signed a letter which is a difficult topic in this group and i don't intend to dwell on it, but on the journalist shield law in which chiefs of intelligence agencies signed a letter to capitol hill opposing the law. we all took a hand in the letter and we were very clear, very clear in the way i summarized it. none of us were insensitive to the principles of the first amendment, for the role of the press and our democracy, nor the delicate -- nor to the delicate balance and tensions between security and openness. f you're looking for a theme that will continue for the next 30 minutes, i think that is it. inherent tension v. this is a condition to be managed. it is a reality with which we must both deal, not some problem we will make go way

through some legislator or other magic. having established that as a first principle, let me toss out another one. everybody has secrets. not just the american intelligence community. all criminal activity requires secrets. the family has secret. the pta has secrets. the lions club has secrets. the press has secrets. i was struck out money times it was mentioned in the previous panel about protecting sources. keeping it sources secret. society understands that. society recognizes that. in broad terms, there are rules for one secret will be recognized and according to privilege and when they will not. we kind of routinely accept the marital privilege, the attorney- client privilege, the priest-

penitent privilege but we have also established rules when those privileges might be overcome for the greater good of the community. just like other elements of the federal government, other communal entities, government need cigarettes to and within the federal government, i don't think it surprises any of you that all three branches claim a right to secrecy. deliberations of courts are secret. congressional markup sessions are secret. the federal reserve keeps secrets of his discussion about the overnight discount rates of as not to affect markets. also out the press has its own brand of secrecy. i was struck by the discipline of the american press keeping out of the press for a period of seven months the new york times reporter was in the hands of the taliban in afghanistan and pakistan. it was known. we talked about it with the press. i was at a social event at the national press club and we were

talking about the circumstances. it was never made public. it was all agreed, perhaps informally by the members of the press, that this was something that should not be published even though everybody knew. the working premise here is that reasonable men and women believe that some things are legitimately secret and need to be kept secret or private. by the way, that separates our conversation here this morning from the earlier conversation about wikileaks. our conversation this morning is to wikileaks as a precision guided weapon against a known terrorist in an isolated area is to the dresden firebombing rate of world war two. the one necessary and legal and

occasional regrettable and the other morally indefensible. by the way, i was struck by the earlier conversation, the blogosphere between julian assange and what we're doing here this morning and another issue. it has to be addressed. if we are in broad agreement that some things are legitimately secret, the question becomes who gets to decide to un-secret them. who decides what should be made public? i was invited to a session somewhat like this more private and smaller over at why river four years ago. i have my notes from that conversation. the only journalist in the room besides myself and my protective detail as we went through this

-- this is not a challenge to the first amendment. this is not a challenge to the free press. i will make some salt crust -- strong suggestions in the next few minutes. rather than reading it as a challenge, let me suggest that you look upon it as an invitation to humility in terms of when it is you choose to exercise this declassification function. let me repeat what i told a smaller group of about four years ago it has to do with the public's right to know. in fact, i said the public has decided through its elected officials what it wants to know and what it does not want to know. the president and other members of the executive branch have been authorized to classified information whose release would damage national security. the supreme court recognizes that. you, the press, kind of recognize that, too.

this is david broder - it is the government's responsibility to keep its secrets secret occurred he goes on to say it is our responsibility to ferret out information so the public is aware of the actions being taken in its name. in other words, the government under the authority of the people has the right and remain secret. they should remain secret until someone leaked to them. then the become fair game my sense is to call the incoherent. i also recognize that others will simply identify that as that natural unnecessary tension that i suggested earlier that exists in a democracy. bill culler doesn't do much better in defending publication. he said publication of the lead stories about the terrorist

surveillance stories," we waive the merits of publishing against the risks of publishing a. there is no magic formula or no need to metric for the public's interest or the dangers of publishing sensitive information. we make our best judgment. making those decisions is the responsibility that falls to editors, a corollary to the great gift of our independence. it is not a responsibility we take lightly or one we can surrender to the government." that balancing of merits verses given the light i have led is precisely what the public through its representatives proposed in the president. there is nobody in "the new york times" that authorized to perform that duty. indeed, the editorial board has claimed that the free press has a central place in the constitution. that it is a pain to the merits

of openness and i would take it more seriously had not been for the stonewalling of certain reporters about internal new york time"deliberations that preceded the deliberation to publish the terrorist surveillance operation. if you recalldd - the washington post" article about the growth of defense contractors and intelligence contractors and one of the core arguments in that discussion was that you have contractors performing inherently governmental activities. well, so does the press. sometimes the press lacks the necessary information to balance those interests.

dave ignatius said that journalists weigh the pros and cons and believe they public information out was a public harbour the problem is, we are not fully qualified to make those judgments. i wanted to share that with you because it is a perspective i have that many people in my old intelligence community as well. i don't tell us the first amendment. they don't challenge the first amendment. the suggestion here is that maybe a little sense of humility is the approach to these difficult issues. i know better than most because there is often information that is over-classified or should not be classified at all. i used to give public speeches as director of those agencies and i still do. i still have to get prepared material cleared by the cia publication review board. i spent what felt like a

lifetime trying to get someone to approve the fact that i could use the word "computer network attacked." " when i was describing something everyone knows our government does. i was struck when mark made mention of the cia drone program. [laughter] because i have to bend like a pretzel in public discourse when i try to describe why so much of the al-qaida senior leadership is dying with such sudden this and such precision in the troubled region of pakistan [laughter] even when there are legitimate reasons for classification, i know that the smaller the hubblddle, the more you are buy.

i have a review of the bay of pigs. the mark secrecy the smaller the intelligence audience, the less systematic and is -- and indexing of information and a more intolerant attitude toward deviant news. on the other hand, what ever sense of comfort we have out -- as americans culturally about openness, what ever sense of inclusion benefits us as we get to decision making, that is attractive in the abstract. it is really hard in practice. frankly, i will not sit here and try to draw a fine line between openness and secrecy and the preamble about providing for the common defense of the first amendment language with regard to a free press. far better minds than i have tackled that problem. ilem of my discussion this afternoon to a much more narrow lane.

i accept attention. i accepted the two of tectonic plates that are striking each other. it is not my fault or yours, it is jimmy madison's. [laughter] we are now in the business of hard choices. i have often heard, infected may have been suggested this morning in the back end of the panel that we would never publish [inaudible] let me tell you how that thing feels when it comes across the internet. it is not that we don't care that you published troop movements, it is the 20th century. let me tell you about the current corporate levy compare the current or to the last one we thought we would fight. remember the soviet union? it was all -- it was in all the papers. some of you may have read about [laughter] i spend most of my professional careers as that as my primary target. those guys were not hard to

find. the soviet troops in germany or part ddr. i knew where they were. they were hard to stop. york publishing troop movements, that would really affect american security. now look at the current war. these guys and not hard to stop at all. they are hard to find. i know where they are. what do i care about publishing troop movements? the real problem is reviewing -- revealing sources and methods. intelligence wins this war, not the firepower. very often, i will have conversations with members of the press about looking at the content of this. that can possibly be secret. they are probably right. they could be right. for the purposes of argument

let's say they are right. most of what i classified as the director of the cia was not based on content. it was based on source. very often, your source does not know mysore. mysore's only knows content. -- my source, knows content. you believe you're doing something fairly benign and ultimately some of destructive. i am not trying to conjure up concrete examples. revealing something that took place in 2007 which is long gone may look entirely innocent under part but it may look very different from my perspective when i know there are only three people in the room when that discussion took place. only one of them works for me. frankly, this is all in the

doing. i don't think any of our discussions will send pay for the rough edges between the requirements of the first amendment and the requirements to provide for common defense. it is a condition we must manage, not a problem to be solved. it was pointed out that this has been with us since the foundation of the republic. what i would like to do much more modestly than solving those macro issues is just come at you with a couple of groupings of advice, one for the press and one for my old guys. in the intelligence community. advice to all parties. let me begin with some practical advice to the press. by the way, i am assuming that the objective of the press is to inform. it is to inform a public debate about a very critical national function. which is what you're espionage services are doing. my first that of advice to the press is watch your language and

watch your assumptions. i mean desperate i will get critical of the intelligence community and a couple of minutes. it is easy for the press and -- in the drive for conciseness and consistency to grab language and slated as a label so that, for example, a body of work produced not more than 150 meters from here became in the press and it will be forever known as the torture memos. and do you realize that when you label the torture memos, you are ending the conversation. you have already concluded for your reader what this is. the same thing might be said for a program much closer to me, the terrorist surveillance program. when the present level that

domestic surveillance, it already locked in a significant fraction of where the best course would go. i cannot resist the temptation that everyone of those conversations had at least one and outside the united states of america. i challenge "phrase domestic." have any of you in the press boarded a domestic flight of ronald reagan and landed in waziristan? phrase"domestic -- viet phrase" t --he phrase "domestic surveillance" let me ask you about renditions. that is the extra initial -- extradition a movement from one person to another country. this is a rhetorical question. is it your understanding that president obama's policy on

renditions is identical to president bush's and that more renditions were conducted under president clinton then were conducted under president bush? is that your understanding? i don't think so. that is the truth. again, as you go into the cia off to the right you shall know the truth and the truth shall set you free. it is the truth. it does not say simplicity will set you free. it says the truth well. truth is complex. to my friends in the press, i would ask you to reflect on the complexity. the second issue i would ask friends in the press is where the stories go? they generally go to the darkest corner of the room but beyond

that, where do they go? let me give you examples. at the height of the terrorist surveillance program thing, abc news led their evening and this with brian ross interviewing a guy. he started the story out of the shadows and they actually had the guy walking out of the shadows. they had brought in there and he said he had a letter that this man was told he could not talk to the congress of the united states about what is going on and nsa. here is the question i would ask. this led the evening news. we are hyperventilating. what did the memo actually say? let me tell you what it said. you have not been cleared for

any intelligence committee special access programs. you are cleared for department of defense special access programs. if you're going to talk to congress, you must talk to the appropriate committee. you cannot talk to the committee's dod. that is what the letter said. i would also said was the clear for the terrorist surveillance program? out as to -- i would ask how long he n had been atsa? how long had he been there and been cleared? after he did talk to the congressional committee, what happened? bupkus, nothing, all we got was the evening news. that is in my mind the moral equivalent of a drive-by shooting, not informing the public debate. last summer, or at the street that way, now have to be very careful, i have to tell you what

i read the newspapers. based on newspaper accounts, it appears that my successor at the cia went up and talked about assassination squads, contractors, blackwater, not reading congress, vice-president of the united states and saying not tell anybody can remember that story? it caused a great rush of commentary. you probably never my quote in which i said vice-president janey never told me to hide anything particularly this program. where did that go? did the agency actually go back and submit a final report on the program? what did it say? in that report, did three directors going to the agency and kind of tell the of the server thatleon said to look at this in greater detail? did three directors go in? did they have to be asked?

in other words, that story kind of got stuck in their. -- got stuck in mid-air. it came back home to our but you'd never know. truth is complicated. it is true not simplicity that will set you free. while i am complaining a aboutpaul harvey and the rest of the story, where are we on the afl-cio story and the stopping of officers in northern new jersey which was a one-day story. ? was anybody surprise of this was a violation of the intelligence protection act? where was the dod investigation on this anyway? that story was covered pretty uneven the. it was more on fox news than msnbc. it was in the post far more than

a was in the times. that suggests the third issue. frankly from our point of view, the coverage often comes my political perspective. i'm talking about the news, not the editorial page for the editorial page has its moments. i can recall in the debate, the editorial page of one daly went to one reporter and said the editorial page not only has the law of the united states wrong, they are getting the law of physics wrong. [laughter] lest you think this is only about being banged from the left, we got slapped from the right with regard to the 2007 national intelligence estimate with regard to the iranian nuclear weapons program. in which editorial writers and op-ed writers from the right side made up the story that this was simply the intelligence

community's revenge against the bush administration for allegedly being hung out to dry on the 2003 issue about iraq. nothing to do with reality i would suggest that editorial policy despite the bad -- best efforts to keep them separate, editorial policy affects coverage. i have no other explanation as to why the new york times" covered the swift story. "the new york times still has serious issues with that. i had a conversation with fobbs as to why they went with that story per it is like a terrorist surveillance story. in the impact. i opposed to going with the tsp but i understand there is a civil liberties quotient of a terrorist surveillance program. all the things you said or justification for going with the tsp.

it did not exist in the swift program. why? the swift program was thoroughly briefed to the hilt. it was agreed to help staffers of the conduct oversight. the swift program was conducted with a subpoena. the swift program had outside oversight. we had auditors overlooking the swift progress and yet you still with the story. what is that about? frankly, i thank it was about the political perspective of the paper that went with the story. ok, enough giving helpful suggestions to my friends in the press. let me give some helpful suggestions to my friends in my former community. number one, talk to the press. i realize that is not a universally held opinion inside the american intelligence community. sometimes, it is quite

surprising the results you get. i think it was jeff in the earlier panel talked about talking to the press to intercept communications. this has happened to me. somebody had a story and i made the phone call. i told them not to go with the story. i ask them to do this -- if you intercepted communications, if you would just simply say intelligence reports say that. the editor of the other at end asked if i was kidding. that is not a big deal. i have no idea. of course. there is a reason to talk to these folks and suggest that these are almost always reasonable conversations. whether or not to engage with

the press when the press has a story is always a tough choice. tore's always a temptation let it ride and stay clear of it rather than engage. like you were talking about the difficulty of calculations when you release and when you don't release, we have the same problem. when do you talk and went don't you talk? this is one where i decided not to talk. this was a good idea. i will read you a message i was sending to the cia workforce. i never sent it. it is unclassified. by the way, that was one way that we decided to communicate with the press at the cia. we did on classified letters to our own work force. [laughter] i am serious. i am sure that many of you saw or heard about last week's abc news broadcast alleging that the

president recently directed the cia to direct covert operations to destabilize iran. indeed, expect -- concern has already been expressed. in talking to reporters and that means right now, we can neither confirm nor deny the story that could contain classified information and i will not attempt to do so here. we have expressed our views to the senior leadership of abc news about this alleged story. in short, we stated that if this story were not true they should not have gone with it. if it were true, they should not have gone with it. because of a strong public backlash the night after breaking the lead story, abc executives had to defend themselves by climbing there had been a period of six days or a cia and the white house could have attended to talk about of

the story. again, still reading from my letter, we did not and will not comment on the truth or falsity of the news report. i will share with you a question that i would raise with any journalist who had any story like this. what part of covert do you explain it? ed? there is another story where i did not engage and i think i made a mistake. there is a story about the cia interrogations tapes that was run in december of 2007. we were aware. the journalist was talking to folks. we had a choice. we could have engaged. we did not appear i. this is not going to be a good story under any circumstances.

these are tapes of our first two detainees that were destroyed in 2005. this is not a good start under any circumstances. in retrospect, i should have engaged and i didn't. i am telling people to talk to the press when the press is accusing us of something. an additional less and i would draw from my friends and the intelligence community -- especially talk to the press when they are not accusing you of something. go out of your way to establish communication and openness with all sorts of media. the story i would use is when i was talking to folks inside the intelligence community is that news of the american intelligence community acts like gas in a vacuum. the only news that is available is bad, it will indeed act like gas and fill up the space and

the only public image of the american intel's community will be shaped by that reality. talk to the press when you're not being accused. we had a program at nsa where we would bring members of the press in for half a day and put had set on to explain to them how difficult and challenging this discipline of signal intelligence was. i would also cancel my friends in the ic the journalist covering this beat besides being somewhat risky legally is just plain hard work. this is really obscure stuff. it is even hard for us who have done this for 39 years to pretend that we have mastered be in and out of this. now you have a journalist not privy to this information trying to put the story together in a

logical and truthful way. there is more that can be done. not when you are fighting a fire in more peaceful times to have open dialogue with members of the press. the third piece of advice i would give members of my own community is go historical. do it whenever you can. it is in history that we sometimes can explain the reality of today that we cannot address directly. for example, right before i became n director isa, they released the venona papers. that was the rosenberg spy papers. we actually released the tapes of the israeli fighter aircraft during the 1967 attack on the u.s. surveillance ship liberty. when we released the tapes, both camps concluded that it supported their point of view.

[laughter] that this was intentional and did not accidental. while i was director at the cia we released the family jewels which was a compendium of a sense of real and imagined over the past decade plus at the agency. i was delighted to be able to do that because one of the unspoken message is is that we keep things secret because they are secret. we don't keep things secret because they are embarrassing. many of these releases in the family jewels were indeed embarrassing. this is not just checkers, it is chesbably three- dimensionalhess in terms of relationships and openness and transparency and security. a day or two after i did the thing with the family jewels and released it in front of a society of historians, i talked at the release about cia social contract with the american

people that we are a product of american society. we are reflective of american values and have a social contract with the society that creates and sustains us. i got the lead and had to be out of me two days later on the hill. they asked about a social contract. in other words, i had the article raising some concerns about my seemingly thinking i had a responsibility to go directly to the first amendment does. guys. the last piece of advice i would give to my old community and i really mean this, you need these guess. you cannot survive without a free press. when i was director, i had a net external advisory board. there were good folks but i

cannot tell you they are. it sounds inconsistent but that's the way it is. i created three subcommittees and this advisory board. one was how to make it better, how do we recruit to be more operation the better. the third element was how this a secret as the bus service survive in a political culture demands more transparency and more accountability from every organ of national life. ? can we survive as a secret espionage service in the broader macro political context? that is not in stasis. that is growing, the demand for transparency and accountability. i think america needs a secret espionage service to the free otherwise it would not have taken the job.

will this drive to transparency destroy the ability of the secret espionage service to protect your liberties? i hope not. that was the most difficult question i gave to my advisory board. it we could figure out and recruiting we could figure out. this was the big one. one of the ways i think this community survive and remain secret and continues to conduct espionage will be shipped by the character of its dialogue by the other community represented in this room, this afternoon. with that, i will stop and i hope i left a minute or two for questions. thank you all very much. [applause] >> we have microphones and we have a couple of minutes and if you can identify yourself and ask a brief question.

>> i am an american citizen, a little less free than i used today. if liberty and security do not have to be eroded in our system of government and the means existed to preserve and the whole ball of liberty and security fluid in the law after 9/11, which you have supported such a solution and if so, if so, then would that have potentially precluded all of the first amendment protected press revelations that get out later? >> i understand the last part of the question. can you be clear about the preamble? what were the choices? >> is it possible to have

liberty and security without eroding either? >> got it. thank you. i have a view on this. some people say is a false choice between liberty and security. sometimes it is. on another level, if you look of the foundation documents and see why it is we have organized government among men, remember that one? it is to preserve life, liberty, and the pursuit of happiness. i will equate life with security and then based on the declaration of independence, i put security, liberty, and the pursuit of happiness are all values. it is not security and values. at our essence, the foundation documents to just that they are all values and make trade-offs among them all the time. we really do. when people say is a false choice, frankly, i am speaking

directly because i consider us among friends, people -- when people say is false choice, they are telling you is a hard choice and they would rather not make a it.n i met a speech and i said the usual thing at the nsa. i wanted to tell them fundamentally what this is about. every three people have to decide where it puts its banner on the spectrum between liberty and security. we americans protect by history and two oceans have always been able to put our banner way down in the direction of liberty. what happened two days ago will put this at risk. here is our task -- i was talking to nsa -- we will keep america free by making americans

feel safe again. that is how i look upon our function within the american intelligence community. to the degree we could be more successful to that degree, we preserved all sorts of options. let me develop this one step further. if this is what is legally permissible, look at the box, i don't want to play near the edge and that causes political trouble. this is legal and permissible but i will play here because it is safer. you play here and you limit some things and you might be legally authorized to do that. the unthinkable happens, let me tell you where the new boxes. is. i felt i had a moral responsibility to play to the extent of block rather than playing back on the grounds that playing back protected me but it

did not do such a good job protecting americans. >> thank you for this. this is an awesome event. general hayden, thank you for your insights and observations. i have to test something you separate that is about the reporting on the cia pictures of cia employees being sent down to guantanamo bay. that is just hideous. it seems odd to me that the press would not cover that as much as you indicate. is it -- is now more of a doj thing and we're in the world are they? i heard that in the town. isn't that really the bigger issue? >> it is, but you take a

legitimate function of the press as being the kind of oversight, that was the source of the question. the overall section of the notes was so what happens to that story? i thought about this a long time last night. you actually had the director of the cia telling you in a presentation that you're not digging deep enough. that is what i meant by that. >> thank you for that. hopefully we will read about that more and the post tomorrow. [laughter] >> i will take one more. i have done this before and i ask why i took that last one. [laughter] >> you mentioned earlier that whenever you talk to the press especially if you have to sit down and explain why you don't want them to report on something thatis