>> today nsa program. hearing on digital currencies that allow people to exchange real goods and services without using real money. then the security of the health care law website. >> this weekend, american history television looks back at the assassination of jfk and its aftermath with eyewitness accounts, scenes from the president's to texas and commemorative event with the daley plaza and commemorative events.

coverage continues sunday with lyndon johnson's november 27 of just to congress and your questions live with robert caro and presidential historian to medina tolly -- timothy naftali. jfk on american history television this weekend on c-span3. discussion on proposed changes to nsa surveillance and foreign intelligence gathering. this begins with remarks from jim sensenbrenner. he is one of the authors of the 2001 patriot act. he is followed by a panel discussion beard this is hosted by the georgetown law center. it is about 2.5 hours.

>> it is my pleasure to welcome you to georgetown university law center. today marks the second discussion of the law schools past himt series on it a present, and future of intelligence gathering in the united states. [feedback] october we kept them on church committee hearings and look for the origins of the foreign intelligence. today we're going to be focused on current intelligent gathering practices. we will consider them currently before congress that would reform before the surveillance court. purpose is to move the

and thinkon forward about what principles should guide us to the future. criticalw at a juncture. this promises tremendous benefits. it makes it more if it shouldn't. it creates the opportunity for growth and new discoveries. societies and nations. opportunity for organized crime. how does this reap the benefits and remain true to our founding principles? this is one of the defining issues of our age. it is one of the aims of georgetown law to bring together

individuals who thought long and hard about different policies. today 21 did this. 21. some adjust the legal standards. many address the makeup. they bring them to bring this to the selection of justice. nearly all have new disclosure requirements. congress, the public, or both. how should congress proceed? bills, nearly a dozen cases, are making their way through the courts. how should the courts rule?

what should be the shape of the future? today it is our great pleasure to welcome some of the most respected individuals in the field to georgetown law to discuss these critical issues. our panel will be moderated i laura donahue -- moderated by laura donahue. hers has been nixed ordinarily important voice to this conversation. she has held fellowship with the center for constitutional law and international security and cooperation in john f. kennedy school of government.

she is a life member of the council on foreign relations and the standing committee on laurel -- law and social security. phd from the university of cambridge england. thank you for moderating and doing so much and make this possible. it is an extra ordinarily important discussion. inc. you. you.o want -- thank i also want to thank our panel. mr. donohue will be giving you some background. jaffer,joined by jameel matthew olsoen, and c rotenberg.

it'll will be an extra in a discussion. -- before we turn to the discussion, this has been one of the most important voices with regard to the surveillance act. sensenbrenner wisconsin. he was born in chicago and later moved. he graduated from the milwaukee country day school and did graduate work at stanford where he did political silence. then he earned his law degree in 1968. after serving 10 years in the wisconsin state legislate, he ran for the house seat and was elected in november 1978. he has been reelected since then. includeent assignments

the committee on science and technology, committee on judiciary. oversightr of the subcommittee. he is member of the subcommittee on intellectual property and the internet and environment and oversight. he is the former chair of the judiciary committee and a long serving committee member. he established a strong record property,intellectual and unconstitutional issues. he also served as chair of the house committee on science where he is an independent leader on science issues as well as oversight. throughout his public life, he has been on the forefront of efforts to reserve the sanctity of life, and eliminate waste in government spending, and protect the interests of america taxpayers. he has been cited as one of the most fiscally responsible house

members and is known for completing these forms. anybody who's ever completed a financial disclosure form really knows that his extraordinary achievements. he is proud of all of the legislative improvements. onrtly after the attacks september 11, he introduced the patriot act as a method to help keep america safe. he was instrumental in the trial production act that president bush signed into law in 2003. it will enhance the amber alert system, strengthen bills is against kidnappers and protect children. forces states to reply

with strict compliance. to ensure the gains in during the civil rights movements were not jeopardize, it would extend the voting rights act for 25 years. he is a major voice on the issues that we are thinking about today and it is a great honor to present to you congressman sensenbrenner. >> thank you. [applause] >> thank you. it is a pleasure to be here today to talk about an issue i feel is really on the front theer in light of all of revelations that have come out about what the nsa has been doing in the last several months. let me say that once i am done with this issue, my next project is to try to constitutionalize the parts of the voting rights act that were struck down by the supreme court at the end of the

term last june. the onei think that is that has been the most effective of all of the important civil rights laws passed during the 50s and 60s and have been brought up to date since then. even though i am not a full committee chair, i am keeping my hands in the pie and attempting to deal with issues that i think are important not only to the security and safety of this country but to improving the quality of life for all of the people in the united states of america. i would like to thank georgetown law for inviting me here today. following september 11, as chairman of the house judiciary committee, i was the primary author of the usa patriot act. our goal was to ensure that our intelligence community had the proper tools to combat terror in a post 9/11 world. i stand by the original intent of the law, but it has been misinterpreted by both the bush

and obama administrations. congressional oversight has also fallen short. and the balance between civil liberties and national security we felt we struck has been tainted. senate judiciary chairman patrick leahy who spoke at the first of the sessions and i introduced the usa freedom act to rein in abuse and put an end to spying on innocent americans while maintaining the necessary tools to ensure our security. the patriot act had 17 provisions. i insisted that all 17 be sunset so that they would expire automatically if they weren't reauthorized. congress later determined that 14 of those provisions were noncontroversial, and they are now permanent law.

the remaining provisions sunset in 2015 and will expire if they are not reauthorized. one of those provisions is section 215, the so-called business records provision. section 215 allows the government to apply to the fisa court, or fisc, for an order to obtain tangible things if they are relevant to an authorized investigation into international terrorism. the administration has used this provision to justify the bulk collection of records of innocent americans. the administration argues that a request for every phone record is relevant because the universe of every call undoubtedly contains relevant information. in her original decision authoring bulk collection, the

fisc judge wrote: "analysts know that terrorists e-mails are located somewhere in the billions of data bits; what they cannot know ahead of time is exactly where." we recently learned that the administration has used similar logic to justify the collection of records related to every financial transfer that americans make. the government collects and stores these records and then accesses them based on criteria it established with the fisc -- a standard adopted in secret and unrelated to anything debated or voted on by congress. the administration?s argument isn?t even a reasonable reading of section 215. if everything is relevant, then the term "relevance" ceases to have any legal significance. if congress intended to allow bulk collection, it would have authorized bulk collection.

instead, we attempted to set limits on what the government could obtain. the administration's approach also subverts congressional intent because the fisc has abrogated its responsibility to determine whether the administration is entitled to access records. the court was meant to be a neutral arbiter that determined whether collection was lawful. instead, the administration collects everything and decides for itself whether it has the authority to access those records. exacerbating these violations is the fact that the fisc changed the law in secret. we talk a lot about striking the proper balance between civil liberties and national security, but without transparency there is no balance. the legal standard devolves to

nothing more than "trust us." senator leahy and i proposed the freedom act, not only because the intelligence community has lost our trust, but because we believe that the american people are the custodians of their government and have a fundamental right to know what is done in their name. title one of the freedom act directly addresses business records reforms -- ending dragnet collection under section 215. title one raises the standard the government must meet to obtain a court order for tangible things and ensures that the records the government obtains are in fact relevant to the government?s investigations.

titles two and five adopt a uniform standard for federal collection by applying the heightened standard to pen register and trap and trace devices and national security letters. taken together, the provisions will force a fundamental shift in how the intelligence community collects data. rather than allowing the government to collect everything and then determine what they need, the freedom act requires them to show a need for records before they obtain them. not only will this protect civil liberties and restore trust in our intelligence community, the changes will focus national security professionals on actual threats. the administration has never made the case that it needs the bulk collection programs to keep us safe. intelligence professionals

should pursue actual leads -- not dig through haystacks of our private data. section 702 of fisa allows the government to wiretap foreigners outside the united states without a court order. title three also strengthens prohibitions on reverse targeting to ensure the administration does not target foreigners as a pretext for collecting data on americans who make calls internationally. as we have all seen, tighter standards are meaningless without better oversight, so the freedom act also addresses the origins of the problem. the fisc currently operates entirely ex parte -- ruling in secret after hearing only from proponents of requests. our judicial system is based on an adversarial model, and the freedom act brings this safeguard to the fisc by creating the office of the special advocate.

the special advocate is charged with protecting individual rights and civil liberties and ensures that judges on the fisc benefit from opposing viewpoints. title three also ends secret laws by requiring publication of fisc decisions that contain a significant construction or interpretation of law to the greatest extent possible. title six helps ensure companies who work with the government are protected. private companies are currently barred from disclosing basic information about the requests for information and assistance they receive from the government. with the support of many of the tech giants, the freedom act increases transparency by giving internet and telecom companies the ability to publicly disclose the number of fisa orders and national security letters received, as well as how many orders were complied with. it will also allow companies to

divulge how many users or accounts on whom information was demanded under the fisa orders and national security letters. in a joint letter, microsoft, apple, yahoo, facebook, aol, google and linkedin wrote, transparency is a critical first step to an informed public debate, but it is clear that more needs to be done. our companies believe that government surveillance practices should also be reformed to include substantial enhancements for privacy protections and appropriate oversight and accountability mechanisms for those programs.? on october 31st, the senate intelligence committee voted for the first time in our country?s history to allow unrestrained spying on americans. the committee created to conduct oversight on these programs has abdicated leadership and responsibility.

but i am committed to a different approach. with over 100 cosponsors in the house and senate covering the political spectrum, i am confident my colleagues will work pragmatically to continue towards the balanced approach supported by americans, businesses and our friends abroad by passing the usa freedom act into law. if you do have any type of professional affiliation, please state that. he would like to be first? thank you. -- you would like to be first? thank you. >> i have worked with the panel. senatee staff of the intelligence committee.

this was passed in section 215. i have a direct role. we have to have a court order. this has to be relevant. >> you were right. the question i have for you is how do you answer the administration's thought that in the reenactment of the patriot to get the information necessary to understand that there was a different intent for that lays withld

your understanding of how the legislative rossa should produce by congressction and the courts to acknowledge the congressional action that expresses legislative intent here it corrects first let me say that the original patriot act is not include a relevant standard. there was a request when it was and 2006rise in 2005 to include a relevant standard. they would say that inserting ae word "relevance" into sentence that did not contain it restricted it rather than expanded it. to theinistration went

fisa court and basically turned the logical meaning of the word irrelevance on its head. over.p the coin rather than limiting it, it was expanding. not party to any of this information that was given. i have limited my participation in secret briefings. the reason i have done that, and i have been in congress a long usually in these classified briefings we find out was in the washington post the previous days. this was an attempt by the intelligence community to basically shut us up as members of congress. we disclose that information that was already in the public be prosecuted.d

i am not going to get myself involved in that. earlier in my career i was shown up with something. i've gotten to the full me twice, shame on me type of thing. what i can say is that when i was chairman of the judiciary mymittee, it mr. conyers was ranking member and successor as chairman. i sent twice a year oversight letters to the justice department. if they were not responsive, we acted like ravi professors and said you have an incomplete go try it again. part onhe nonclassified the committee's website joint lead. this was the partisanship at work. it it ended up

that the committees ended up what theerleaders for justice department wanted rather than providing the oversight was necessary and now we're paying the price as a country for it. we're going to have to change the law to stop this from happening again. i hope this answer your question . this is an appropriate day to exploring how well got to president lincoln's objective to the people for the people. i thank you for that. the most important day comes when there is a decision for the leadership to get pat leahy the up or down vote on the freedom act.

quite i am an attorney here in washington, d.c.. i am curious if you could speak to the case. you mentioned that there were cases to both collections. be one tois may public life. i am wondering if you could speak to this. this was a target. there could have been a 215 order under the the freedom act and intent that we originally thought that the patriot act had. the answer to the question is there is the legal authority to do that.

the only real person who was collection washe the positive. my recollection tells me that he of convicted of some type financial crime. if that is the case, i get a little bit worried. the patriot act can be used to prosecute all who have no relationship to any type of international terrorism because of the data that is in the records.

>> history has shown the prosecution involves things like other non-terrorism related offenses. how does the valuable collection get reserved under the freedom act? we know this doesn't effectively help aid in the selection. >> there are millions of americans that are wings duped up. if you want to go entirely on the side of national security, yes. that to let the fisa court continue to do what they're doing as well. i'm trying to strike a balance between a balance.

they are allowed to survive for over 200 years. i am trying to strike a balance. i thought balance was struck with the patriot act. have there been any collection? as one who was intimately involved in negotiations. bywould have been shot down an overwhelming vote because the votes were not there for it. we have time for one more. good morning.

i'm a university law student. i was wondering if you see any possibilities to amend section 702 to better protect your people. >> the bill does amend section 702. in terms of the protection of .uropean we went to brussels. have extensive conversations with members of the european parliament. i also had a dinner that was sponsored by the transatlantic partnership. i was accused to giving a vague answer in response to that question.

my answer is that the european commission is due to have a negotiation with attorney general holder this coming weekend. how we proceed on that depends on the outcome on those negotiations. without an amendment, u.s. businesses are starting with the telecom companies. they will be losing an awful lot of the year of the. i heard about this again and again.nd it can a lot is the technology that has been applied to telecommunications. it does significantly reduce the palance.

-- reduce the balance. this has to be resolved. this is where we have been doing the best as americans in europe. the attorneyr from general and the commissioner. i want to hear from both of them so i do not get spun into the wrong direction. i do believe in as the serial proceedings rather than hearing a learned presentation on one side and coming to a better learned conclusion. that is where trouble starts. thank you. >> yesterday the documents showed that the e-mail metadata collection was being conducted under the reactions.

how does this suggest that type of metadata collection? increases the standard for metadata collection through 1 pin register. it is under section two seen. when wean say is that were jointly doing the oversight the testimony was that this was very sparingly used during 2001 through 2006. the national security letter request were rolling off the xerox machine at breakneck speed. so that if we fixed this they do not use the other types of provisions in the patriot act to do what we

thought we were stopping with the in the minutes to the other law. >> i hope you'll join me in thank you representative sensenbrenner for being here today. [applause] >> well come to what promises to be a timely and important discussion. we just heard from representatives sensenbrenner about a number of the programs. this is the name that this has gone under. we know there is the bulk collection of metadata. we have seen international

communications. seen a corresponding movement of activity. hadhe executive branch we hundreds of pages of information from the director of national intelligence. some was in response to a lawsuit. this was simply to increase transparency about the process. they're two very important opinions. regarding the e-mail program that is also the release of the 1986 version of the signal intelligence track it.

there is a lot in there. we just heard senator leahy and the congressman introducing the revamp act. there are two dozen bills currently before congress. they are pending. the federal district court cannot review the actions of the surveillance court. on friday they will be arguing clapper in the southern district of new york. this has been the first laws to the foreign intelligence surveillance act.

there is a lot going on. there is perhaps no better panel one could assemble than the one we have today. introduce ouro panelists to you. this houses the national security project in the privacy and technology project. testified numerous times on congress. since 2004 he has been a monitor for guantanamo bay. book which was a published by columbia university press. clerk joining the aclu he for the court of appeals.

he is a graduate of williams college. welcome. an age of a divided congress it is no small that our next panelists was confirmed by unanimous consent. this was in june of 2009. want to take a moment to unanimous consent. he has brought experience in criminal law and national security matters. he was deputy assistant attorney general of the criminal

division. he started his career as a clerk for the judge edward wind field. from 1978-1984 he was assistant u.s. attorney for the southern district of new york. he'll does ba from harvard college. it is a pleasure to welcome you back to georgetown law. 2001, this is well. we -- aware ofbe this. this serves as a primary organization for analysis and integration for all intelligence.

he reports to the director of national intelligence. the second mission is to collect strategic information for .ounterterrorism prior to joining, he served as though for the security agency. he recently served as the department of justice. he also was the acting attorney general for the national security division during the presidential position. it also being someone that had to argue cases. he is familiar with not just the contours of how it actually works.

in 1990 422 thousand six, he was thederal prosecutor for district of columbia. from 2005 2 2000 was in charge of the national security section here in d.c. he graduated from harvard law school. that has been an adjunct professor. had to get up to go into the administration. in i turn to mark grunberg who is the executive dreck to. he has testified before congress on many issues including encryption policy computers the 30 and privacy.

he is one of the most prominent advocate both in the united satan overseas. illegal legal asked for on cyberspace law and the spam of the itu. he brings an important perspective and knowledge of international law and policy. he currently chairs the committee on privacy and protection. he is the former chair of the registry that manages the.org domain. of privacyber rights. she is a graduate of harvard

college. he served as counsel to senator patrick leahy after graduation from law school. he is a fellow of the american bar foundation. welcome back. i would like to begin a panel discussion today. we're going to be talking through a series of areas. chain to you first, this problem between government and national how has theairs, threat to privacy and the challenges altered with new technology? >> i think this is a starting point. newton analogies has certainly made possible a much greater

collection of information about just. characteristic of the digital age as we move from the .nalog roam is a profound transformation. there's privacy available to us that do not exist in the animal -- analog world. they will try to recapture some introl over personal data many cases to remove data so it cannot be access for impermissible purposes. the starting point, movement is profound.

those that are engaged to protect the nation security they would say that many communications have moved from the airways or they could be easily captured in the past two the network and the internet in particular. for those people who are in focus iseir increasingly our modern communication networks. .t is still the satellite dish these companies have in their possession the information they like to obtain. you on how this has played into the nonstate actors? >> thanks for inviting me here.

a follow-up on the comments. technology is a cool. the talent -- sounds from my perspective is to understand the threat that we face from al qaeda and other groups as well. just as much as enabled us to communicate and if there have been this revolution, it is a wideng we see geographic area. they need to communicate with someone in libya. the effect of that is that this

has shrunk the network for our adversaries. it made them easier for them to communicate operational information. is a platform for this propaganda. the other area we are certain qaeda can reach far .nto the united states throug from the perspective, tools and technology is a concern. we're looking for ways to improve our ability. at thees this look

accumulated threats in the light of the new technologies? i'm not exactly sure what you're asking. i'll just answer the question. to make two important points, the dni has made the point that in the cold war we were talking about relatively isolated network.

this is technical and legal challenge. two other points i want to make. spent a lot of time talking about terrorism. that is not the only purpose for which we collect foreign intelligence. attacking us from cyber attack. these capabilities are actually him orton. it is not only a terrorism issue, there are other legitimate purposes for which we collect foreign intelligence. building on what mark said, there is no question that a great deal is possible. what is important to focus on is what is actually done. believe that we are not sensitive to the privacy implications of what is being

done. we do not just collect the data and allow people to roam through it randomly. there are very stringent controls of how we do that. the goal here is to find ways that allow us to make use of the opportunities that mark thisified for collecting while limiting it. >> let's go back to that. what was the legislation? two of these would not. all of them have some sort of additional safeguards.

i would be happy to talk there was some of these suggestions are. >> what are your thoughts? there a lot of time looking at the operation of these programs. i think there are some changes that could provide this without unduly compromising the program. i do not think there is an commission.

one is codifying into law a number of the provisions of have been put in the buys the court orders. limitse imposing greater on the extent to which we can make queries in the amount of time we can hold the information. we do not want to see the collection program go away. we think it manages to complete this with a minimal intrusion on privacy. the uses and retention are strictly limited. this would allow the collection but riveting content analysis of that information.

>> and impose other restrictions on how it could be used. you can only be used for contact chaining. the kind be used for of things people worry about. is a walk through. it can only be used for one narrow her fist. i want to push back on a couple of things that that were said earlier.

we do not know where to look for terrorists. historyhink back on the of the cold war, it is obvious that we do not know where to look. there are russian agents hiding rock.every we do not know where they were or what they were doing. we going to do about that? how much privacy are we willing to give up because of the possibility that there are russian agents hiding somewhere. and do nothing there has been a shift. terrorist use e-mail and the web. obviously that is true.

terrorists used snow melt when they were communicating through then. we still have to ask this question. how much privacy are we willing to? or allowing them to track every correspondent we engage in? you need to strike that balance is not something new or presented for the first time because of the threat of terrorism. i think there is room for disagreement about how stringent controls are that the fisa set it on the use of dissemination. of the quite remarkable thing, if you go through the opinions of the obama administration has released over the last few months, and go

through the opinions of the court evaluating the government's compliance or not. you see abuse over and over again. the wrong people get a hold of the information. they use it for the wrong purposes. after theyo use it have selected it. that happens over and over it. you have to go into these debates understanding the reality that these will be misused. it will be used by people who mean to abuse them. this happens every time with intelligence or grams.

you have to take that into account. >> before you respond, do you want to answer? i have a very good lawyers on these issues. of them a common ground where he worked on these programs. these are really complicated statutes. implementingnd these programs, have a very dynamic environment. the internet is constantly changing. as a legal regime that is always trying to keep up.

there will be compliance issues. there will be missed day. where we part ways is like his and abuse. the record that is not clear is haven't been instances of any intentional misconduct by the intelligence community. the reported to congress. in the way they are .ealt with

i think the record he refers to us ae that does she give vacant degree of confidence -- give us a significant degree of confidence. >> i think that if there is something that people who read the newspapers should understand. complicated technology system. they frequently do not necessarily work as you expect them to. the word "abuse" in the a little bit like saying the department of health and human services is abusing people because of the fact that the obamacare website do not work properly. they are complicated. they frequently had a disconnect twin the lawyers and operators, but there has never been any finding or suggestion that anybody was intentionally abusing these programs or

intentionally trying to circumvent the rules. >> mark? >> i want to take a step back here. credit and to bob's the administration's credit, there has been much greater transparency about the activities of the pfizer court, and publication of opinions and orders. we are all grateful for that. i'm not sure that would have occurred without certain publications in "the guardian." take a step back and propose there is another way to understand oversight. -- as is anendency abuse, this is not an abuse. been fascinated by the original wiretap act that was passed by congress in 1968.

it followed two significant supreme court opinions, one which you're probably very familiar with, the other one i suspect you are not. we'll talk about u.s. versus cads as expecting the reasonable expectation of privacy. one of the early states had wrestled with the question of how to regulate these new electronic surveillance authorities and establish procedures and affidavits and so forth. the supreme court said to new york state, you have not gone far enough. the fourth amendment requires more of you in authorizing this technique to ensure the privacy protection. what followed the next year was a remarkable articulation of the type of safeguards that you could put in place to establish accountability.

you can ask the question, as congress did in 1968, in which circumstances is it appropriate to use electronic surveillance and which is it not? congress only came up with half a dozen crimes initially, acts that would permit the use of electronic surveillance in the u.s.. over time, that increased dramatically. they started with a very small category. they said there would be public reporting. which courts for more inclined to grant it, who gave extensions. noy said there would be targets after investigations were concluded. you don't want to jeopardize investigations once they're underway. was it has been completed, you should let people know they have been subject to surveillance by their government. you look at the 1968 act and say to your self, this is an

elaborate structure of oversight and protection. the aim is not to tie the hands of government investigators, rather to create accountability in what is potentially an unbounded investigative technique. i think we're at the point today which is almost as far on the spectrum from the 1968 act as you can imagine, with the current pfizer authorities. we are just about at the point of unbounded technique. we will talk about the cases on the briefing and some of the arguments put forward by the solicitor general. no argument with bob about the extraordinary internal oversight mechanisms that have been established at the agency, or for the fact that he is accountable to congressional oversight committees. so much of this is unaccountable. up to the last couple of months,

people like me have been following this for 25 years, knew virtually nothing about it. this is not what congress intended when it originally considered the question of how we allow these electronic surveillance in the u.s. just to first clarify something i said earlier, my argument is not so much that these authorities have been intentionally abused up until now, although i think there is evidence they have been. my argument is that you have to take into account not just the possibility, but the certainty that they will be intentionally abused at some point in the future. bob says that they have stringent controls, and they do what they can to make sure those stringent controls are actually complied with. remember edward snowden, for example, someone who is not supposed to have access to all

the information he had access to. this is information the government was protecting. it is the most sensitive information the government had, yet here was the person who was able to get the information and make it public. we have different views on whether this is a good thing or not. this is something the government tried very hard to protect, and was not able to protect it. all this information the government is collecting now about all of us, very sensitive information about your intimate relationships, your political beliefs, your religious views, all that information that bob says is meant to be protected is protected and is meant to be protected, but someday somebody will get access to it who should not have access to it or use it anyway was not supposed to be used for. you have to take that into account when you accept the programs in the first place. when you think about whether it is a good idea to have this program, you cannot think about the program with all the controls bob described. you have to think about it in the ways it might be used. >> let's focus on the possible

solutions. there is the set of solutions that deal with the court and how the court is constituted. whether you want to and bulk metadata collection or whether the bulkin it, -- end metadata collection or whether .ou retain it waiting period to have that waived for the gag orders. what are the elements in those bills that you think are promising moving forward that would address your concerns? >> the provisions you just described are crucial to the bill. for that reason, the aclu strongly supports this legislation, the sensenbrenner leahy legislation.

it has got to be just the beginning. it cannot be the end of reform. there's a lot of surveillance that goes on outside the scope of these particular provisions being addressed. there's a lot of surveillance that goes on under the executive order. some of the documents released last night have to do with that kind of surveillance. there are structural issues that if you're addressed going to ensure that surveillance is used in the ways it ought to be used. for example, you need to have stronger protections for whistleblowers. you need to make sure that people who see abuse feel protected in bringing it to light. you have to have some way to ensure that the courts can review what the government is doing, some way to ensure the courts can bring the constitution to bear on these activities. decade, twot doctrines, the standing doctrine have been used to immunize the

government surveillance activities from review by any ordinary federal court. there are some proposals floating out there right now to address that particular issue, and that's important as well. >> you have put on the table predicate acts, notice of targets. put on the table particularized showings prior to collection of information. what are your responses to these proposals, and what would you like to see in terms of reforms? >> i would take a step back. taking a step back is useful. i've always viewed it in terms of the accountability question, that there really was a deal struck with pfizer and the thatligence committees there was an understanding that much of what we do in the intelligence community when it comes to surveillance is by toessity secret, and needs

be secret. in 1978, congress created a which basically operates in secret, in classified settings and set up the intelligence committee to hear classified information, to understand what the intelligence community was doing and said, these are the accountability provisions, the ways in which the government is going to ensure that the executive branch is written -- accountable for what it does. side of trying to ensure that the legality of these programs under the ideactor general -- the was that the accountability would be achieved through these mechanisms that would balance the need for secrecy, and transparency. thats point is -- thatbility mechanism

is essentially the regime under which we have operated, and under which we continue to operate. -- operate. on the question of the proposals, i think 215 has been effective and i would like to see us continue to be able to collect the bulk data on telephone calls. there are ways in which we can limit the collection in terms of the attention -- retention period and the way it is used. controls in place limit the circumstances under which the government can query the data. it is useful if i can take another minute to answer these questions. think about a semi-hypothetical. say there is an attack, a bombing in a major american city. so, the boston bombing. within a few days of that you have a suspect or two suspects identified.

you have a cell phone that relates to one of those suspects. the question is -- can the government take the cell phone number and query the metadata to see the phone calls that number has made and the calls made to it? you could go to each of the providers and ask them individually for that information and hope that they kept that information for long enough to be relevant to provide the information you need,whether that is three months, six months, one year. we have tried to do this using the 215 program, which is to collect that data, limit the circumstances that one can use it and have a database that can be searched under strict control, to see what number that number has had called or has

called from. when time is of the essence -- are there other bombs, perpetrators, associates as part of a broader investigation. the 215 program can be useful to achieve the speed and agility from a counterterrorism perspective. >> a quick question on 402. why was this ended if this is helpful? what would you like to see with regard to that? >> i would have to look and see with the document said. i haven't had a chance to see the documents that have been released. >> the metadata program, the internet metadata program has been ended because nsa determined the benefits of it were not sufficient to justify the continuation of the program. >> does that include the e-mail? >> yes. >> it is all internet and e- mail. >> internet metadata is how we characterize it.

i want to pick up on mark's thoughtful analysis. i think it is the right way to frame the question which is -- how do we accommodate oversight, number one, with the need for secrecy? american people have the right to know what is being done in their name. if you take that literally, it would shut down the intelligence community. we cannot conduct activities to protect the nation if it is done in public. no other nation has the degree of transparency or judicial oversight that we do. you also need to take into account the different nature of foreign intelligence collection and criminal wiretaps in the title iii context. you are investigating a known suspect's activity. foreign intelligence, by its

nature, consists of gathering a lot of data and trying to analyze it and trying to find the things that you do not know yet. marc is right. we need to think about what is the right degree of oversight, but you have to take into account that what you do in criminal context is not going to translate directly into what you do in foreign intelligence context. >> i will take issue with something that matt said just a moment ago. i do not think there is a real dispute about the need to have a separate procedure for foreign intelligence collection as

opposed to routine criminal investigation. i guess i agree with what bob just said. as much as i hate the phrase, "strike the balance," i think congress struck the appropriate balance in 1978 with the passage of the national foreign intelligence surveillance act. and construct a framework with some judicial oversight, some public reporting. very minimal as a special circumstance. i think the reality, in post- 9/11 america, is a special case has swallowed the rule. if you track the number of title iii warrants that are issued each year, as well as the number of fisa orders, you will see that there is a crossover point in 2003. that was the year in which there were more fisa orders issued than title iii warrants. the comparison is imperfect, but i think it is, in some respects, accurate.

how we understood the use of surveillance authority in the u.s. moved from the much higher standards established in the 1968 act to the lower standards that congress created in 1978 for the special circumstance of fisa. if we need further evidence of how far we have come from 1978 i hope we will have time to talk about it -- you look at the order signed by judge vincent, issued under the foreign intelligence surveillance act for the collection of foreign intelligence, it is directed at a u.s. telephone company for telephone records on u.s. customers concerning solely domestic communication. you cannot imagine a greater distance between the intents of the framers of the 1978 act and the current use of that authority.

>> marc said a lot of what i was going to say. to take it one more step -- there was this deal struck in 1978 which, perhaps made sense, given what types of surveillance before -- people were contemplating at that time and what kinds of questions people were contemplating the fisa courts would address. the idea at that time was that the fisa court, when evaluating individualized applications for surveillance, the government would identify suspected foreign agent within the united states and the court would evaluate whether the government had shown probable cause with respect to that particular person. that kind of analysis, that kind of task, is very different from what the court is doing now.

if you look at the opinions that have been released over the last few months, the court is not saying this person is a foreign agent and you can wiretap his phone. they are issuing broad interpretations of federal statutes of the constitution and authorizing these dragnet programs that implicate the privacy of foreign agents and of everybody. it is a jarring and sobering fact that, over the last decade, some of the most significant judicial opinions have been issued by a court that meets in secret and allows only the government to appear before it and does not publish decisions. that is a world apart from what anybody had in mind in 1978. if you accept the 1978 deal was the right one, we are in a different world. it is time to ask whether we need to -- if this is the right metaphor -- strike a different balance.

>> are the current structures sufficient or not? what are your thoughts on this, in light of the opinions that have come out? you're looking at the makeup of the court. what is your position on how the court is constructed and changes that could be put into place to ensure this oversight that you emphasize? >> i think it is odd that people can say the foreign intelligence court meets in secret and only hears from the government and then can point to the opinions of the foreign intelligent court and how they wire brushed nsa for its compliance activities. i am not going to ask matt to comment on what it is like to appear before the judges of the court, but the way the court is structured now, they have their own legal advisory staff.

there is back-and-forth between the government and the court. i think judge walton wrote a letter to either chairman leahy or someone else in which he said approximately 25% of the applications that the government submits gets returned by the court for supplementation or modification. that includes the bulk of the workload of the court which is still the original title i individual target fisas. i think they do provide effective oversight in an area that is -- we're talking about the collection of foreign intelligence that is historically, prior to 1978 was not subject to oversight at all.

having said that, there is a sense that the public would be more comforted if there was an opportunity for another voice to be heard before the court. we can support a proposal to allow the court to go outside, get a cleared lawyer, and argue the other side or support it as the case may be. >> this is the position of the obama administration. the president has said that he would support a special advocate, although he has not endorsed one bill over another in terms of the various ways this is presented. perhaps you can comment on what it is like to practice before the court so we can move forward on discussing how that may be addressed.

>> i was a prosecutor for 12 years in d.c. and handled a lot of cases before the district court here. i did, particularly, title iii wiretap and search warrant applications. there are a lot of similarities. there are a lot of similarities, and in fact a lot of the procedures and standards are similar between article three criminal courts and the fisa court. there are some differences. all of the fisa courts are -- fisa court proceedings are classified. there is a sense of a heightened responsibility and duty of

candor to the court beyond which a government prosecutor might feel. this is an ongoing relationship that exists over time. the lawyers in the division always present both sides of an issue. one check on that -- one aspect of the fisa court practice that makes it a little more like an adversarial proceeding is that the court has advisers to our professional staff members who are well steeped in fisa and they serve as a check on the government perspective. it is a very vigorous practice. the judges are very demanding.

this is now being revealed in opinions that have been released at this point. >> i wanted to make a couple of points -- bob mentioned the letter from judge reggie walton, which was to senator leahy about the pushback which the fisa court does give to the authorities. he also noted there had been no opposition from any party among who an order had been served in the history of the fisa court. we think that is significant. there's the one opportunity provided by the statute by an adversary to raise a question as to whether or not the government is seeking exceeds the statutory authority. that provision has never been in exercise.

when a criminal prosecutor goes ex parte to discuss title iii or a warrant, there are obvious reasons why you do not want to tip off a target. the key to that structure is that there is a particular target. you have someone in mind. you have met some probable cause standard and you're trying to gather evidence against the person. what is so problematic about analogizing that strategy to the fisa court is that you have programmatic authorities. there is not a particular person you have in mind, you are simply saying to the court -- i believe we have met the legal standard to gather these telephone records from verizon and we cannot let people know we are doing that. my question is, why? who are you investigating that you are afraid you're going to tip off? the analogy collapses with respect to programmatic collection.

>> you don't have to believe that government lawyers are intentionally misleading the court to come to the conclusion that an ex parte process is inadequate. if you look at the rulings that have been released by the administration over the last few months, the rulings are riddled with claims by the government, accepted by the court, that would not have been accepted had there been an adversarial process or the very least would have been tested more vigorously had there been an adversarial process. the government told the court in 2006 and in 2008, and in the time between 2008 and 2013, that metadata was not sensitive. there is a debate to be had about how sensitive metadata is. the idea that metadata is categorically not sensitive is not true. if there had been a party on the other side to say to the court,

it is not that simple, you would have had an analysis of that issue in the court's decisions. the government told the court that the call records issue was governed by smith versus maryland, this 40-year-old case in which the supreme court upheld the installation of a pen register on a criminal suspect over a two day period. at the very least, if someone had been on the other side, the court would have to grapple with the chasm between individualized, short-term metadata surveillance and the kind of dragnet, seven year program that the government is engaged in right now. finally, if you look at this decision that judge walton issued in 2008, the program had been in place for three years. a government attorney figured out there was a statute that, on its face, prohibited the government from using section 215 to get call records.

the government went back to the court and said we have just identified the statute that presents a hurdle on what we asked you to authorize three years ago and what we have been doing for the last three years. they said to the court, there is a way to read the statute to allow us to keep doing what we are doing. by the time they went to the courts, it had been in place for three years. to ask judge walton to find that statute -- was asking judge walton to say that he was wrong three years ago. the court was invested in the program by the time the government raised that argument. maybe those issues would have come out the other way, maybe

they wouldn't. the point is they would have been tested more vigorously had there been an adversary. >> do you see any changes that could or should be made to the court in order to account for this? >> we could support the idea of a proposal for someone to come in in individual cases. i am not sure what idea you have -- i am not sure what more you have in mind. when you're talking about programmatic activities, there is no reason to keep it secret because you're not tipping anybody off. that is not correct. we are able to conduct programmatic surveillance because of the fact that people use communication facilities that they do not -- that they are not focusing on the fact that we can intercept those communication facilities. they are focusing on it now because of what has been leaked. we see that in the communications we intercept. there is a story where someone

was asked what they thought of the french revolution and he said, it is too soon to tell. are people going to change communication patterns? we don't know. they are thinking about it. the fisa court is going to have to operate in secrecy. there's no way we can disclose what we are collecting, where we are collecting, how we are collecting, and whom we are collecting against and maintain an effective intelligence agency. >> there is always a bit of a risk with what becomes an unbounded rationale if we accept bob's argument. i don't see why they can't make the same claims with the regards to financial records or travel records. we need to be able to draw some

lines. it was a line that was crossed in the fisa amendments act to authorize programmatic surveillance. it was contested. it went forward, not over the -- it went forward, not only over the objection of civil liberties group, but members of congress as to its application. to the extent that the government is engaged in those types of surveillance activities, the secrecy claim has to be diminished. the alternative is that the secrecy claim can go as far as the government chooses to press it. >> the fisa amendment act was something -- when you talked about challenges to what is being done before the fisa court, that does not include the amendment act.

it has been disclosed that there was a provider that challenged the protect america act which is a predecessor to the fisa amendment act. it includes the same types of provisions to allow the government to target non-us persons overseas. a challenge was taken before the fisa court and then it was challenged at the fisa court of review and it was declassified back in 2009, i believe. it laid out the fourth amendment and statutory basis for the government's collection. the government went before congress and said we want to restore fisa to its original intent.

that is essentially what the 1978 law allowed. they went to the court, explained that in the law was passed. it was challenged and it was upheld by a district court within the fisa court structure. here's a case where there was transparency. congress and the courts will was going exactly what was on and that was revealed, that prism, there was nothing new as to what the government was doing. there was transparency there. i would take issue with the notion that was done secretly or without the understanding of congress or the courts. >> marc, a response? no?

>> can i add one thing? marc has gotten to the point. matt noted that in the late 1970's there was a sense that there needed to be greater oversight. that was set up through the intelligence committees. under fisa, we are required to report decisions to the intelligence committee and judiciary committees. i am sorry if members of the judiciary committees feel they attend feel they can classified meetings. that is the structure through which we determined is most effective to conduct oversight activities that must necessarily be secret. that is through the intelligence and judiciary committee. it is not that they take place out of view, it is that we have

determined the best way to enable necessary classified activities to take place while ensuring they're watched over is through the intelligence and judiciary committees. that is the way we determined this ought to be done. that has been followed. >> i think bob and matt have to get on the same page. i hear matt saying there is transparency -- >> i agree with everything matt says. >> bob says we cannot tell you how these things are going to be used. if we tell you, they cannot be effective. on the 702 question, it is not true that the government was above board with how the statute was going to be used. there was a lot of smoke and

mirrors in 2008 when the statue was passed. when we challenged the constitutionality of the law and said this was a statue that can be used for dragnet surveillance of international communication, the government's response was -- you guys are paranoid. you have no proof we're going to use it this way. you cannot even show it to be used this way because you do not know the technology. that was their position up to the supreme court. if you read the decision for five members of the court who joined the majority opinion, the justice accepts a statement that the aclu's contention that the law could be used for dragnet surveillance was too speculative to justify standing. they kicked the case out. a few weeks after that, edward

snowden released this information to "the guardian." the government was engaged in this all along, but the government denied the aclu -- >> how do you define dragnet surveillance? it is not what we do under 702. a dragnet, that is a large fishing net that sweeps everything up in it. you pick out the fish that you want and you throw everything else back. that is not what we do under 702. i am not sure what you are talking about. >> maybe you can explain what you do under 702. i think the story out there right now is that the government engages in precisely that under 702. if it is not true, you should correct the record.

>> it's not true that 702 allows us to target non-us persons outside the u.s. for foreign intelligence. that is what we do. >> the distinction is non-us persons versus u.s. persons. >> it is not dragnet surveillance. >> we did a brief in support of jameel's case. it was an imperial court brief. it was not a legal argument. it was experts in the capabilities of the national security agency. we outlined in support of the aclu's contention that people had reason to believe their communications were subject to interception. we provided what we could detail about the nsa's capabilities. justice breyer took notice of our brief.

we do not have access to the documents that mr. snowden made available. we are heading to the end to talk about the significance of the order that established how that authority was being used. i wanted to come back to bob's use of the term dragnet. it strikes me how precisely correct in the application to 215, because what you do when you go to the telephone companies is you collect all of the data that you are able to gather. you go to the data that you have acquired under stringent procedures, but nonetheless, post-collection, and determine what is of interest to you. i guess my question on 215 --if

that is not dragnet surveillance, what is? >> i was responding to jameel's comment on 702. 215 is a different program. we do collect in bulk under 215. it was accepted by the fisa court that that is the only way we can get the information that is relevant. it is not an approach that we use in exercising authority under fisa. it is based on a particular showing and particular set of restrictions approved by fisa court. >> the notion that they do not grapple with these issues -- i can attest to the grappling that goes on by the court.

the government -- we have taken the position that we would be open to looking at ways to increase public confidence. the reality is, judges, an -- in extraordinarily good faith, grapple with these issues. since this debate has come to light, another judge of the fisa court reaffirmed the collection as constitutional and consistent with the statute. >> of the bills before congress, we have not addressed the nomination of judges to the court. would you like to comment on some of these proposals, whether it should be done by the chief justice, the president, whether it should be nominated from the

circuits, should it be 11 or 13 judges? >> i will make a brief comment. i uncovered this thesis that was published by princeton senior back in 1971 on the right to privacy in america. this was seven years before the enactment of fisa. he talked about the need for national security warrants. he talked about the legal standard and the necessary showing and about the composition of the court and he suggested it would be appropriate for the president and congress to make nominations to the court of national security warrants. i think it is a good proposal from a college student. that was samuel alito. >> other comments on it?

>> i don't have a perspective on this question. all of these judges have been nominated and confirmed by the senate. i don't have a perspective on a different way to select the judges. >> 10 of the 11 persons are republican appointees. there has been attention to the low rate of denials of the applications in the last 10 years of 18,000 some odd applications. only 8 have been denied. these have given some momentum considering reform of the court how it is appointed.

>> i am not sure the current selection process makes a lot of sense. i think it would serve the government's interest to have a process that was seen as a more fair one and that resulted in more representative court. i would not put this problem at the top of the list. i do not think the fundamental problem is that we have the wrong judges on the fisa court. i think the problem is structural. it is the way the fisa court operates. it is the kinds of questions that the fisa court is now addressing which are not the questions that the fisa question -- the fisa courts were supposed to address when it was set up in 1978. all the secrecy has allowed of this entire body of law to build up without the kind of rigorous oversight that usually happens with ordinary judicial opinions of ordinary courts.

if a court in the southern district of new york issues a ruling that construes the ndaa to allow the government to detain people that are suspected terrorists, that opinion is splashed over the pages of the national newspapers. people can debate it. congress can debate it. it gets in airing and the fisa court's decisions are like these mushrooms that grow up in these dark forests. no one sees them until eight years later when they are overgrown and they have -- i have probably taken that too far already. fisa court opinions do not get that kind of oversight. then you get opinions like last night. there was genuine surprise

across the political spectrum among the legal theorists and academics about the courts fourth amendment analysis. people from across the spectrum thought this was not an analysis that makes sense. even people that support what the government is doing. that is the result of secrecy. that secrecy is unnecessary. i think everybody agrees that some degree of secrecy is necessary if you're going to have foreign intelligence surveillance at all. >> i do not -- i think jameel's perspective is a fair one. the question is -- how much can we afford to provide? how much transparency can we afford and still maintain operational effectiveness of the programs?

i agree that it was not contemplated that courts would be looking at programs like 215. the record that has been revealed is convincing that the court approaches these questions with a degree of seriousness and full familiarity and does an impressive job of dealing with these issues. >> the statute is set up for them to serve for staggered seven-year terms. once you serve, you cannot serve again. there are other protections built into the statute. anything else on this? >> no. >> litigation. we have a number of suits that are working their way through the courts.

the supreme court denied it --. if you would like to comment about the suit? >> i wanted to thank the justices for their timing. they turned down a petition the day before our conference today so that we could talk about it. i thought that was very thoughtful. we are grateful for that. a little bit more seriously -- i think the petition that was brought to the supreme court teed up almost exactly the right issue. we gave this a lot of thought. the defining moment was the public release of judge vincent's order advising verizon to turn over its records.

i read that order multiple times. identify the part that is unlawful. i said i can find it. it is this provision, right here. and i realized it was an order from the fisa court. we did everything we could to bring this issue to the one court that we believe can overturn that order. i want to thank our advocacy council who has done a lot of work on this case. we have openings for clerkships. please follow up with alan. just to be clear as the legal

argument, there are two simple points here. we do not believe that section 215 authorizes such a broad document production authority, as the court believes it has. we do not believe it is logical for many of the same reasons that congressman sensenbrenner made. as to the question of why did you go to the supreme court first -- we looked very carefully at every other court and concluded this was the only court that we had a basis to bring this matter to. i have to thank laura, who did a great job gathering up legal scholars and former members of

the committee that argued that we were right. we were joined by experts in national security law, randy barnett. i still think, i know there are other challenges being pursued in the court, but i think the u.s. supreme court will need to answer the question as to this inferior court's application of law and precedents. we are at a strange time in american legal history where these opinions are coming out of the fisa court, interpreting statutes, constitutional law, almost as final judgments

because no one else would know about them. i do not think you can sustain a judicial system in that way. i think the court will hear this. >> jameel, i will turn to you. there are 16 cases live. one has been submitted to the foreign intelligence surveillance court. you were arguing on friday. can you comment on these questions of jurisdiction? >> a lot of the issues are pretty dry. i will not address those. the standing question is actually crucially important. in the case i was referring to earlier, the one we took to the supreme court this year, it is called clapper v. amnesty. it was a challenge to 702. they said our clients lacked standing because they could not show that their committee case

-- communications had been collected under the law. we made the argument allow the collection of our client's communication and they had to take costly measures to protect their communications from surveillance. that was an argument that the court rejected. the important point of that case is that the government's argument was the plaintiffs lacked standing because they could not show collection. now we are arguing the call records program is unconstitutional and we have a court order that shows our communications were collected because the aclu is a verizon subscriber. that court order says to verizon, turn over all of your records. there's no doubt our records were collected. the government has developed a new theory which is that, it is not enough to show collection. you have to show the government reviewed your records.

on that basis, they say we do not have standing to challenge this program. it shows the kind of litigation games the government is paying -- playing to insulate its surveillance activity from judicial review. it is worth thinking through the implications of that theory. if you accept government surveillance is immune from judicial review until someone can show their communications were reviewed, if you accept that collection is not enough, that review is necessary, nothing will stop the government from recording every phone call, from copying every single e- mail, from creating a huge database of information of location on the theory that it may one day be relevant. on the day that it becomes relevant, the government will

become answerable to a court for its activities. you would be accepting that limitless surveillance without any oversight by the court. surveillance that is doesn't cause injury, that is the government's arguments about surveillance not reviewed, it does not create a case for controversy under article three. it is a radical theory under the dry rubric of standing. that is the government's argument. >> bob, do you want to comment? >> government lawyers have a practice of not talking about matters that are in litigation. i do not agree with jameel's

characterizations of the government's arguments. it would be best if we set on that. >> yesterday, judge leon was very reluctant to find a district court had jurisdiction over the foreign intelligence surveillance court. how are you answering this challenge? >> we are not asking the court to review the order of the foreign intelligence surveillance court. i'm glad marc brought that case. it is a case where they were asking the supreme court to review what the fisa court had done. what we are asking for is an order in joining executive action.

it is an order enjoining executive action and government in conducting this program. there are lots of propositions that federal courts have jurisdiction or authority to review the constitutionality of government surveillance, even when the surveillance has been authorized by the fisa court. federal courts around the country review the constitutionality of fisa court rulings. one of the responses was that marc should have done with the aclu did and got to the district courts in the first place. i am not expecting that is going to be the hurdle. >> matt? >> i will pick up on bob's points.

i cannot and would not comment on the ligitgation. one point i would make, i don't want to be left with the idea that short of civil liberties at -- civil litigation, we are talking about all the ways government surveillance is bounded by the executive branch structures, oversized through congress in a number of ways. -- oversight by congress in a number of ways. the executive branch follows the law. civil litigation is one way to enforce, but it is not the only way. >> thank you, we're going to open it to questions from audience members. please come to the mic and if you would state your name and affiliation.

>> i am an attorney in washington, d.c. what actions are you taking to ensure that data collection under fisa is revealed to the >> the fisa statute itself requires the disclosure of information and certain types of proceedings, particularly criminal proceedings. where it is to be used in a criminal prosecution, there is an obligation to disclose that. >> matt has it right. it might be worth noting that between 2008 and about a week ago, the government never gave notice to any criminal