that not one of the 46 recommendations in our report would in our view compromise or jeopardize that ability in any way. on the contrary, many of the recommendations would strengthen that ability explicitly by increasing safeguards against insider threats and eliminating certain gaps in the law that make it hard to track people under circumstances in which we have reason to believe they don't wish to do us well. in terms of the reforms we favor, just three very general points. the first is the immense importance of maintaining a free and open internet promoting both democratic and economic values. across partisan lines, there's a commitment to internet freedom and what's done in this domain we believe should be compatible with that commitment. the second is the importance of risk management signaled i think, mr. chairman, by your opening remarks. that's a central, unifying theme considering multiple risks first and foremost the risk to

national security, but including, also, the risk to public trust, risk to privacy, risk to economic values and risk to democratic self governance. so, a major task going forward, what our report tries to thread a needle on is to try to ensure a full set of rirkss are taken into account and we aren't optimizing only along one dimension. the third point is the importance of accountability which is a unifying theme for our 46 recommendations. accountability to senior level policy officials, accountability to the legal system, to congress and this committee through increased transparency and disclosure and above all to the american people. through transparency and disclosure. and i should emphasize that one form of accountability includes steps that would help increase public trust not just within the united states but throughout the world. this is a diverse group as noted. we reached all of our

recommendations, this is a bit of an upset, by agreement. there are no dissents. there was no horse trading. and there is no compromising. there are 46 -- >> you never make it in the senate. >> there are 46 recommendations if my arithmetic is right. we have 230 votes. that is all five of us are behind all 46 recommendations. no team bats a thousand or even comes close. and our transmittal letter makes clear to the intelligence community, to this committee, to the american people that we offer our recommendations with a great deal of humility and as a mere part of a process, prominently including the deliberations and judgments of this committee. we look forward to your questions. >> thank you very much. and i notice the comment i made i think a couple of things are extraordinary here. one that you did reach a consensus and i wish we could

reach the same kind of consensus in the senate. and many things we do but not enough. and secondly, your comments about the professionalism of our intelligence men and women in the various intelligence communities, i totally agree with you. as mr. morell knows without going into subject some of our closed door briefings, he's heard both republicans and democrats praise the work and some of the things he's had to bring before us. some very critical matters. and i have spent enough time with stations chiefs around the world in different places and realized how important the work that they all do. now, when the bulk phone records

program is made public last year, there were some who immediately began arguing the program was critical to national security. they cited 54 terrorist plots have been thwarted. you have had reason to review those 54 examples as i have. as i read the report it reaches the same conclusion as i and others here did. that the section 215 program contributed to only a few of those cases. was not essential to preventing any terrorist attacks. so that's been put to record. i think it's also important to look at another thing we keep hearing that somehow if this program had been in place before 9/11 it could have prevented that. now, mr. clarke, you were a senior counterterrorism official at the time of those attacks. would the bulk phone records program have prevented 9/11?

>> senator, i think it's impossible to go back and reconstruct history and i think while what if history is interesting academically, it's very difficult to say with accuracy if one fact had been changed if the outcome would have been significantly different. i think we can say this. that if the information that the federal agencies had at the time had been shared among the agencies, then one of them, the fbi, could have gone to the fisa court and could have in a very timely manner gotten a warrant to monitor the appropriate telephones. they didn't because they were unaware of the information that existed elsewhere in the government at the time. but there was a period of over two years where that information was available.

so it would have been possible in a very timely manner to get a warrant from the fisa court. >> wasn't that one of the things that the senator graham and his review committee found, that it was a sharing? >> that's exactly right. the joint committee. the two intelligence committees of the house and senate found that the information was in the government at the time. it just wasn't shared. >> thank you. now, i raise the issue of national security letters or nsls. and as you know, for those who are not familiar, they permit the government to obtain certain communications and financial and credit report records without a court order. also, as i raise, the fbi can impose a virtually permanent, permanent gag order on nsl recipients. number of us have been trying to reform that. your recommendations on nsls

haven't had as much attention as other topics covered by the report but i think they're just as important. and so, professor swire, how did the review group arrive at its conclusions regarding nsls? >> thank you, mr. chairman. well, we arrived at it. the group amongst us includes three law professors so on legal matters we were particularly vofld. we went to the fbi and we interviewed fbi counsel in detail. we also amongst us had worked quite a bit on issues related to nsls previously. based on that, one of the things we focused on was the so-called gag orders or nondisclosure orders. in the criminal world, when there's an organized crime investigation, there's often nondisclosure orders on the order of 45 or 60 days. we found out that they're heather permanent or come up for review for the first time in 50 years under current law for nsls and that's very, very different

from the way that grand jury subpoenas or investigations in the criminal side happened and so that lack of disclosure and the long, long period of secrecy is certainly one thing we were concerned about. >> well, and doesn't that create a real problem in some cases of person receiving in nsl, the gag order? >> so it poses problem for the e-mail providers, phone carriers receiving the nsls where they're not a position to describe the activities they're taking leading to situations where among other things the actual facts might be quite reasonable if understood more broadly. many of the providers expressed concern that they under this gag order cannot reassure their customers about the good practices that exist and that's been a concern for the industry, certainly. >> let me, before i yield to senator grassley, professor sunstein, let me ask you. some would say the nsls are like

a grand jury subpoena. and you can have the can have t nonjudicial review and so on. do you agree with that? >> there is an overlap and the fbi has been driving that analogy. there's also another analogy, 215 itself where we recommend the certain process that's more consistent with the normal one for getting access to people's records. we think if 215 has the structure it should, then the national security letter should follow the same structure, that the situation between them is extremely hard to justify. there is a earn analogy to the administrative subpoena, a question with breadth and scope and we think given the urgency exception that of course there would be to treat the national security letter like a 215 record seeking would not

compromise any national security goal. >> thank you. and thanks, senator grassley to intrude one more question. i'll say this to mr. morell, we've heard some government officials talk about section 215 programs. they say we shouldn't -- americans shouldn't be concerned about them because phone records and nsa obtains are just m metadata and not particularly sensitive. the review group said there were some risks in opposed by the government obtaining massive amounts of met adata, could you elaborate on that? >> i'll say one of the things that i learned in this process that i came to realize in this process, mr. chairman, is that there is quite a bit of content

in metadata, when you have records of the phone calls that a particular individual made, you can learn an awful lot about that person. that's one of the things that struck me. there's not in my mind a sharp distinction between meta data and content, more of a continue up. >> in the new york times op-ed, the government should ends it domestic program, current program creates potential risk to public trust, personal privacy and civil liberty. and of course the concern i've had and some others have had, no matter who is president or who is the head of these agencies, we don't want the temptation in there to misuse it. but senator grassley, thank you for coming over and i note that senators have been joining us. i think we were all told there was going to be a vote at 2:30

and that has not happened. if we keep looking over your head, we're looking at the little white dots up on the clock to see when the next one might be. senator grassley go ahead. >> the chairman explained, what i wanted to explain. it is a very important hearing but you may not conclude that since other members aren't here. we are all told there was going to be a vote at 2:30. before i ask questions, i have an opportunity of an opening statement. i thank all of you for being here and for your work on the committee. this is the latest in a series of hearings on government surveillance that our committee has held, nsa continues to be of great concern to my constituents and many across the country. the most important responsibility is to protect our national security while at the same time preserving our civil liberties, this is a responsibility that's quite hard

to meet. rapid changes in technology are making our enemies more lethal and world more interacted and privacy more subject to possible intrusion. under these circumstances, it's useful to hear a variety of perspectives including from those outside the government. and i thank the members of the review for your service. some of the conclusions in the review groups report may help clarify the issues before us as we consider possible reforms. first according to the report, quote, although recent disclosures in commentaries have created the impression in some quarters that the nsa surveillance is indiscriminate and persuasive across the globe, that's not the case. then the report that i quote again concludes quote, we have not uncovered any official efforts to suppress the scent or

any ability to intrude in people's lives without proper justification. none of this means that the potential or abuse of these authorities shouldn't concern us. it should. and or that the nsa hasn't made serious mistakes or the law in this area couldn't be improved. indeed there's a place for additional transparency and safeguards and oversight, but these conclusions are helpful in clarifying issues. the report recommends that the national security in the united states depends upon continued capacity of nsa and other agencies to collect essential information. in considering proposals for reform now and for the future, policy makers should avoid the risk of overreaction and taking care and making changes that could undermine capability of the intelligence community, end quote. and that's very good advice.

one recommendation that may reflect this advice is the review group's proposal to reserve the controversial ability to querry telephone metadata but with some changes. one of those recommended changes is private entities, this is an interesting idea perhaps worth investigating. i think it's legitimate to have concern that it may create some -- as many privacy problems as it solves. indeed, private companies seem to be allowing their customer's information to be hacked on what seems to be a daily basis. just as importantly, i'm concerned that in other snapss a review group may not have fooled its own advice. some of its other recommendations may seriously threaten our national security if adopted collected. for example, some of the recommendations in the report appear to make it more difficult because to investigate a

terrorist than a criminal and extend to rights to foreigners without good reason and some appear to rebuild the wall between national security communities that existed before september 11th of 2001. of course, that wall helped contribute to our inability to detect and thwart the attacks on that day and thousands died as a result. i don't mean to criticize the effort or intentions of review group but i'm concerned the group was giving such a relative shoort time to to their work as a result, for example, i understand that the group spent only one day at the nsa and if i'm wrong you can correct that. i'm also concerned that the group lacked some important perspectives, for example, none of the members experienced sup advising terrorism investigations at the department of justice or the fbi. the concern that the group produced a large number of recommendations and didn't develop some of them fully as

the review group wrote, its recommendations, quote, will require careful assessment by wide range of relevant officials with close reference to those -- to the likely consequences. end of quote. that's pretty good advice. i'll look forward to continuing that process today. i have a question for dr. morell after the review group issued its report, you wrote an opinion piece in which you emphasize that the report recommends changing the metadata program rather than any, you wrote have the program been in place more than a decade ago, it would likely have prevented the september 11th terror attacks, end of quote. further you wrote the program has quote, has the potential to prevent the next 9/11. so i would like to have you

expand upon why you hold those two opinions and can you give us any specific examples of how metadata program was valuable to you when you headed the cia? >> senator, let me first say, that the reason i wrote the op-ed with regard to 215 is i felt there was a misperception on the part of the media and much of the american public that the review group had indeed recommended an end to the program. and we did not do that. we recommended a change in our approach. and that was the main reason i wrote the op-ed to make that clear. it is absolutely clear that the 215 program has not played a significant role in disrupting any terrorist attacks to this point. that is a different statement than saying the program is not

important. the program as i said in the op-ed, only has to be successful once to be invaluable. and it does carry the potential going forward to prevent a catastrophic attack on the united states. and that was another point i was trying to make. i believe it. another point i'll make, mr. chairman, is that -- and we talked about this as a group, there is value in a negative quaery of 215 data. it is invaluable to querry the data base and if thep don't have contacts, that gives you some reassurance the attack will not be here. we talk about that in the report. >> i have a question -- let me

read a lead-in. one of the changes that your report recommends concerning the metadata program, a private third party or parties hold the metadata instead of nsa. but we've seen recent instances where companies like target and neiman marcus have been unable to protect private data. my constituents would be very concerned about privacy. so any one of you, but hopefully not all of you because i want to ask another question, what was the group's asession. of the privacy risk associated with the metadata stored in private hands and did you speak to the telephone companies to explore whether they are willing or hold to metadata. >> we did speak with the companies about that and they would rather not uphold the data. our judgment about the government holding the data is that the primary danger of the 215 metadata program is not if

it is used only in the way in which its use is authorized but that it leaves sitting out there a huge amount of information, personal information about the americans that could be abused in awful ways. and the question is how to avoid that potential abuse. and one of the ways we decided it makes sense to avoid that is to take it out of the hands of government. the concern in the fourth amendment, concern of our constitutional history is that government can do far more harm if it abuses information in its possession than private entities can. and therefore our judgment was that the government should not have possession of this information, because if it does, there's always a possibility of someone coming along down the road and seeing this as a great opportunity to get political dirt on individuals, on the activities and associations and that that's a danger that we want to avoid. the other hand, we do believe the data is useful and the idea

is to find a way that would enable the government to have access to the data but minimize the risk that it could be abused in that way. keeping it in private hands would still pose privacy risks and they would be of different order and much less in the sense of the kind of abuse historically we're most concerned about. >> this will be my last question. one of the things i'm concerned about is that we not rebuild the wall that exists between law enforcement and national security commissions, communities before september the 11th. part of that is making sure we don't make it harder to investigate a terrorism case than any other type of crime. fbi director weighed in last week on reforms you proposed to national security. he called these letters quote, a very important tool that is essential, end of quote, to the work of the fbi. he also stated, quote, what worries me about the suggestion that we impose a judicial

process on nsls is that it would actually make it harder for us to do national security investigations than bank fraud investigations. so professor swire -- maybe somebody else more appropriate, but why would we want to make it harder for agents and prosecutors to investigate espionage and terrorism than other crimes? did you consult with the director about these recommendations and finally, aren't your recommendations in this area almost exactly the same as what you i assume professor swire recommended to this committee back in 2007 long before the recent controversy about nsas. >> professors are always thrilled from several years ago and it is wrote on fisa prior to that and we went to the fbi and the fbi lawyers came to us and

we met with him to discuss these issues. we've had quite extensive discussions. in terms of comparisons for criminal, any criminal investigation, you have all of the criminal powers and then you may also have the nsl and foreign intelligence communities. there is one difference that in a criminal investigation if there is some mistake or problem, that comes to light there's a check and balance there, if you have 50 years of secrecy, we never find out what the government is doing. because of that risk of long running see kreltcy and not knowing what it is, some extra safety guards are appropriate for these secret foreign inl intelligence things. >> that's one difference. >> thank you. >> i'm going to yield to the senator feinstein. before i do that i want to place in the record -- meant to have done this earlier, detailed report by the new america foundation includes the executive branch and claims about the effectiveness of

section 215, phone records overblown and misleading and then a record -- new report by hoover institution researcher concluding 215 phone records is only a marginal value. white hou without objection those will be placed in the record. i want to say how much we appreciate the senator feinstein as a member of this with her expertise. and other members who also serve on the intelligence committee in both parties. >> thank you very much. i appreciate those comments. i'd like to submit a statement for the record, if i may. >> i at the same time ask for something to be put in the record? >> absolutely. >> without objection the items by both senator feinstein and grassley be made part of the record. >> thank you, very much mr. chairman. mr. chairman, the intelligence committee and virtually every member was there perhaps missing one, had the opportunity of

talking to the professorial element of this committee last week. the intelligence element wasn't there and we regret mr. clark and mr. morell were not there. but mr. more ll, particularly for your ears, i think what we thought in reading the report and in listening to the testimony was that the group didn't want the program to continue. and then i read your op-ed piece in the wall street journal. -- excuse me, in the "washington post" and i would like to read parts of it and see if the committee agrees, if i may. several news outlets have reported that the review group has called for an end to the program. we did not do that. we called for a change in approach rather than a whole sale rejection to better protect the privacy and civil liberties

of americans key values of our republic and we recommended that the government no longer hold the data and that it be required to obtain an individual court order, which i want to ask about, for each search but make no mistake, the review group reaffirmed that the program should remain a tool of our government in the fight against terrorism. then you go on. another misperception involved is the review group's view of the efficacy of section 215. many comment ators have said it found no value in the program. the report accurately said that the program has not been essential. i want to talk about the word essential, to preventing attacks since its creation. that's not the same thing as saying the program is not important to national security, which is why we did not recommend its elimination. mr. swire, do you agree with

that, yes or no? >> there are about 14 things there. i'm sorry, i was trying to write them down. yes, on going to the private sector and keeping the program. yes on the court order for each search and the last part was -- not that it was useful to have the information from the program roughly speaking? >> yes i agree with that also. mr. sunstein? >> i agree with every word. >> professor stone? >> i agree -- [ inaudible ] needle in the haystack -- i'm sorry, that it is possible that in the future there will be an instance in which 215 if it exists will enable us to prevent a major attack that we could not

prevent. it does have value in that way. >> mr. clark, welcome, it's good to see you again. yes or no? >> senator, i think we are surprisingly all in agreement. >> good. that's what i wanted to know. >> thank you very much. now the word essential. this is a word that's debated as to its meaning. we have one recent court decision out of the southern district of new york and i'd like to read from page 48 of that opinion. the effectiveness of both metadata collection cannot be seriously disputed. offering examples is a dangerous strategy for the government because it discloses means and methods of intelligence gathering, sux disclosures can only educate america's enemies. and nevertheless the government acknowledged several successes in congressional testimony and in declarations that are part of the record in this case. in this court's view, they offer

ample justification. then it goes into al qaeda associated terrorists in pakistan, connected with an unknown person in the united states, and particularly were 215, according to the court came in, was an nsa was able to provide a previously unknown number of one of the co-sprters. the next one is january of '09, an extremist in yemen, connection with khalid o zanny in texas and nsa notified the fbi which discovered a plot to attack the new york stock exchange. using a 215 order nsa inquiried metadata to identify potential connections. three defendants were convicted of terrorism offenses. and the fourth, again, this is a court opinion, in october of '09, while monitoring an al

qaeda affected terrorist, the nsa discovered david headily, who is a major figure was working on a plot to bomb a danish newspaper office that published cartoons depicting the prophet mohammed and goes on from there. so the word essential i think is a word that is often debated. you also say as -- that is it was likely that this could have prevented 9/11 and could quite possibly prevent another 9/11. am i correct about that? mr. morell? >> we as a group -- >> i'm asking you what said in the op-ed. >> yes, i said that. but question never talked about that as a group about 9/11. we never came to a judgment about that as a group. >> it was just your opinion. >> just my opinion. >> let me ask you another, general alexander testified to

us that in '09, the nsa did in fact go to the fisa court and found that it took nine days average to be able collect the information that was necessary. are you aware of that? >> no, ma'am. >> well, that's according to testimony by general alexander, we also know -- my time is up? is that what you're saying to me? would you let me finish? >> of course. >> he can be very strict. thank you. this was used after the fact in the boston bombing. but here's the difference, the boston -- they used emergency powers and they were able to get information quickly. this is used to prevent an attack. so those of us that see it important to revent another attack -- i don't need to tell you, terrorism is up, we know

they'll come after us in they can. there's a real litany of fact. the question comes, do you not find value, substantial value in being able to prevent this attack? >> so i find substantial value in any tool that helps us prevent attacks. i believe that 215 carries the potential to prevent attacks and that's why i think it needs to continue. but one of the important issues i think is the question of efficacy for us did not really impact our view on the change in approach to the program. we do not believe that we're going to add a substantial burden to the government by making the changes we're suggesting. if something can't be done quicker than nine days, then

they need to make changes to make that happen. we also wrote into our report an emergency provision so that in emergency situation, when intelligent community knows they need to move quickly, they'll be air to inquiry the data without a court order, going to the court after the fact. >> thank you very much. >> i should note, you weren't here for this part of the testimony, talked about 9/11, that one of the biggest problems there is that we had the information -- would have prevented 9/11. but the people with it did not communicate as they should have and i recall a number -- some of the information we had finally being translated a week or two after the event. senator lee? >> i'm told my distinguished colleague from south carolina, senior to me, needs to go somewhere so in deference to the gentleman from south carolina,

i'll let him go first. >> do you want to give that much deference? >> can we vote on it? >> senator graham -- >> thank you. okay. >> senator graham, please go next and just so we'll note, we'll then go to senator blumenthal and then back to senator lee and back to senator franken then senator cruz. let's pick up on what the chairman said. you wrote an op-ed. >> turn your microphone up. >> there we go. michael, you wrote an op ed piece that you think if this technology could have been in place before 9/11 it could have prevented the attack. that's your personal opinion? >> yes, sir. >> how many people agree with that? raise your hand if you do. >> i would say, senator -- >> that's not raising your hand. >> i think the reason we're not raising our hand not that we disagree with michael but we're not specialists in the details

of 9/11. >> fair enough. >> fair enough. >> they just said they did when i read it. >> well, we'll just go with what you said. >> we agreed with the quotation, senator feinstein read from mr. morell's "washington post" op-ed. on the 9/11 issue in particular we did not discuss as a group. >> we'll take what she said, they agreed with you. the bottom line, let's get way at the 30,000 foot level, what are we trying to do? do you believe as a group we're at war with radical islam? >> i do. >> how many of you believe we're at war? >> the difference between fighting a crime and war, there's a fundamental difference, do you agree with that? intelligence gathering is a very important tool in fighting a war, do you agree with that?

>> that's a critical theme of our report. >> yeah, so i guess what i'm trying to let the nation know, what you gentleman are trying to do, we're trying to find a way to fight a war within our values and this is an unusual situation. there's no capital to conquer. there's no navy to sink. there's no air force to shoot down. we're fighting an ideology. if we all believe that the enemy doesn't mind dying, as a matter of fact, that's first prize for these guys to die, we have to hit them before they hit us. is that generally the thought process here? we've got to identify the attack before it happens. they will not be deterred by death? >> that sounds fair. some version of that is in our report. >> al awlaki, how did we miss the fact that a major in the united states army was communicating with him?

i mean, we got all of these programs and everybody is wanting to revisit the programs which i totally understand. but we've got a major in the united states army that wound up killing 19 people, that was openly talking for the whole world to see, to one of the chief terror suspects in the world in yemen. how did we miss that and what can we do to make sure we don't miss that in the future? >> i don't quite understand to be honest the thrust of the question. our recommendations do not take away the ability of the government to use the metadata program. we shift where it stays, from the government to private sources and we save the court orders necessary, but as we make clear in the report, we do believe it's critical to protect the national security of the united states and believe our

recommendations -- >> the fact that nobody can answer the question. i understand reforming the program and trying to be more sensitive to private concerns, but no one is really talked much about the fact you had a major in the united states army on active duty openly communicating with a known terrorist following his ever word and eventually got radicalized and killed 19 -- >> senator, we do have a section in the report about military and war that talks about how the same internet, the same hardware and software that used in afghanistan and iraq, these days used back home. when it comes to surveillance own hardware and software over there, it's the same hardware and software here. that didn't used to be the true in previous wars. it is a challenge we talk about. >> let's use the anwar aulaqi analogy. if he is calling someone, we got a cell phone and dialing someone

into the united states, calling someone, the program after the changes you're recommending, can it still pick that up? >> yes. >> yes. >> would a court order be necessary? >> unless there was an emergency, yes. >> do you agree with me that you don't need a court order to surveil the enemy in a time of war? >> overseas, yes, not in the united states. >> to you agree he would be an enemy combatant? that he would fit the definition of an enemy combatant? >> probably would want to look at that, the legal authorities on that. i don't think we disagree with it but -- >> the main point is you believe we can still pick up the phone call? >> yes. >> that's good. now, if somebody is calling him from the united states, can we pick up that phone call and do something about it?

>> if either end is overseas it's not 215 that's an issue, it's 702 -- >> most americans could care less about the titles -- >> it's relevant to our recommendation, sir, because on 702, the one side is overseas, we keep the same structure basically it has today. >> can you reassure america that if somebody in the united states is calling a known terrorist in yemen we can pick that up and do something about it? >> yes. >> at the end of the day, my time is up. isn't that what we're trying to do? aren't we trying to find out who's talking to who when the person -- one of the people doing the talking is somebody who we're really worried about attacking the nation and not trying to do anything more than that. >> yes, senator, that's a very important point because it applies both domesticically where there are concerns about american citizens that don't fit and internationally where focus is on the source of situations you're discussing and not on

picking on people's private communications. >> thank you. >> i appreciate you knowing the difference between the 702 and -- senator graham, we'll have to look at what adequate safeguards especially when dealing with an agency that doesn't have adequate safeguards to keep a contractor from stealing millions and millions and millions of file and still are today after spending millions of dollars, don't know all of the details to. and that -- i just don't want to get lured by all of the technology we have lured into kplasantsy. we saw the same thing -- no mean to be picking nsa, when state department and military put all kinds of files and all where a

private first class can go in and download it all under lady ga-ga cd and then cause -- as we all know, enormous difficulties for the united states when these highly classified cables from ambassadors were made public. senator blumenthal. >> thank you, mr. chairman for holding this hearing and thank you to each of you for your very impressive and extraordinarily important work. i think you have elevated and provided credibility to very specific and very significant proposal that advance the reform effort in our intelligence gathering operations. and senator graham referred to the present evidence to counter terrorism as a war, there is a saying, it's an addage, abelieve

attributed to the romans, my classic education isn't good enough to know, but the saying is in war law is the first casualty. and you have provided a really profound important service in making sure we do not have law as casualty and as you say in your report, it's the first principle you states, the united states must protect at once two different forms of security, national security and personal privacy. there's a reason why courts matter and founders of our nation thought they mattered. they wanted to prevent general warrants and secret courts like the star chamber and one of the reasons they rebelled against it. my questions focus on the courts and i've advanced and proposed the constitutional advocate and public interest advocate, however you want to label it, that would be independent

institutionalized to ensure there is an adverse sarial proceeding, whenever the advocate thought it was necessary, not on an ad hock basis, but court's benefit from hearing both sides and from having the advocate decide that another side should be represented. and i'd like to hear from you because we've heard the contrary point of view that it should be an amicus free -- as it has been sometimes called, or some other kind of ad hoc proceeding and maybe beginning with professor sunstein, with you, stating on behalf of the panel, why you chose this structure because obviously the president is going to have to make a decision as to whether adopt that idea and we as a panel and the senate will have to deliberate as well. >> history is relevant here.

there was an understanding when the court was created that it would be basically dealing with issues of fact like whether a warrant was justified, not with large issues of law and policy and as the system is developed over the years as you're well aware, senator, often the judges are being asked to decide the large questions. and so adversary proceeding seemed warranted in a setting of that kind. we're well aware that some judges for whom we have a lot of admiration on the court believe that the judge ought to be in charge of deciding when the public interest advocate is relevant. we think that's not consistent with our traditions. normally it isn't the case. the judge gets to decide. this interest gets a lawyer. we think to have someone who's a dedicated officer designed to protect privacy and liberty interests, a very important safeguard. >> and the provision of an

adverse sarial proceeding such as you described reflects the change in the role of the court, that's a very important point. wouldn't necessarily delay it or i am peril secure if there were preclearance and if warrants were granted and then reviewed afterward, in other words, we all know in the ordinary criminal process, some of us had knocked on the judge's door in the middle of the night, if we thought it was necessary to get awarrant. and the same principle applies here, does it not? >> that is very important. so senator feinstein and senator graham rightly draw attention to the immediacy of certain threats. the fact that some things coming and where you need information fast and as you say consistent with our traditions to accommodate emergency situations. and in the short time i have remaining, perhaps i could ask you to elaborate a little bit on the reasons why you recommended a change in the method of selection which i agree is very, very important to the trust and

confidence in this process and i think one of the reasons for reforming the whole system is to preserve and enhance trust and confidence of the american people, that we're doing both forms of security here, national security and personal privacy. >> i think it was justice frankfurt who emphasized the importance of doing justice and the appearance that justice is done. and that is connected with your point. we also think particularly in the context of selection of the judges for the fisa court, a little diversity is a good idea across democratic and republican appointees, as the report makes clear we have all of the respect in the world for the chief justice and have nothing critical to say about him in this connection, but it just is the case political party in terms of appointing president, that's awkward. and we would like to seal more

diversity. >> in accord with the conditions of our judicial system that appearance and deception has to be served because of the immense and many respects undemocratic powers that courts exert undemocratic because we believe in elections generally and here we have unelected fisa court members, operating secret, other members of the judiciary operating in the open. but they too are unelected. i think that your point is very, very important. i again thank you all for your service to our nation. thank you. >> thank you very much, senator blumenthal.

>> i appreciate all of you coming here. the work that you have done has been held will. i'm confident that it will do a lot to frame this important discussion as we move forward. then importance of these issues cannot be overstated.

that i likehings they've pointed out in your report appears on page 15. you pointed out an interesting coincidence. the concept of security has dual meaning. one of the most important things is to keep the people safe, to protect us from each other and to protect us from those outside the country who would harm us. security is one of the most important functions of the government has. at the same time, it refers to something different. it refers to something else that might have been in conflict with that created conflict. that is the concept of security referred to in the fourth amendment. stickierhe right to be

, to be secure in our house, papers, effects against unreasonable searches and seizures. this concept a what that means to be secure in this second respect has changed over time. it has necessarily changed as our technology has changed, but the fundamental principle underlying the concept of security must necessarily remain the same in order for us to remain a free society and in order for our constitutional protections to continue new -- to be meaningful. one of the things we have struggled with as a congress and that we struggle with as a country as a whole relates to the fact that where we keep our papers and what our papers are has changed especially in the last few years. no longer do our papers consist exclusively of actual paper.

what the founding generation would've thought of as papers, often exist in the electronic equivalent. those are not stored exclusively on hard drives with a finite location. it a lot of times they exist on a cloud somewhere. these pieces of information, these papers, in many instances are something we have or reasonably should have a next rotation of privacy which is reasonable. -- expectation of privacy which is reasonable. we have to figure out how to balance these two sometimes

conflicting interests associated with security. there are several ways in which this arises. we have talked a little bit today about the collection of metadata and the fact that we have an enormous amount of metadata that has been collected on potentially 300 million americans. the government notes that it has in place a rigorous review process that must be followed before anyone accesses this database containing metadata on basically every american. what concerns me about that is the fact that these are internal operating procedures. what is a policy today which may be followed religiously for all i know today could change tomorrow. i am willing to assume for purposes of this discussion that the men and women who work at the nsa have nothing but our

best interests at heart. i am willing to assume that. that might not be the case a year from now or four years from now or 10 years from now. we have seen this movie before. we know how it ends. we know that eventually it that much information remains in the hands of government for that long it will be abused and manipulated for partisan and the various -- and nefarious purposes. let's are with professor stone. when we look at this -- would this be something you describe as one of the most compelling argument in favor of putting more robust restrictions in law so that they are not simply in the hands of people, however well-intentioned they may be, inside the nsa? >> yes, this is of primary concern when it comes to the collection of metadata. it is not the actual use of the metadata it is authorized but the risks somewhere down the road that someone will figure

out how to misuse that data and i think the safeguards in place internally are quite good. they are rigorous, multifaceted, there are checks and balances. even so, our judgment is that it should be taken out of the hand of the government in terms of holding the data. that reduces substantially the potential for the data to be abused in the way you are talking about. it is still a question of trade-offs. our judgment is that it is an important step towards reducing the risk on one side while at the same time preserving the value of the data for national security purposes. >> for that reason, chairman leahy and several of my colleagues have introduced legislation. if i could ask one follow-up on

this. some have suggested it would simply be categorically infeasible to require a court order as a condition precedent for performing a query of the government database. let's assume the data set does remain in the possession of the government and we will move to a different system in which the government does not have possession. the argument frequently arises. you cannot require a sort of court ordered work wearing -- for querying that database. it would take too much time. do you know of any reason why that should be the case or why that should be the unavoidable

case? while we can't get around that? >> our view is that there are practical realities. you need to add resources, judges, magistrates is it necessary but there is no reason why the argument about getting a court order for a query of metadata is any more impossible than getting a search warrant to search her home. this is what we do all the time and are great protections and there was no good reason it should not be adopted. >> thank you, professor. >> senator franken. >> thank you, mr. chairman. i think this report will be a real help. on page 124 under report you will quake a free people can government -- can govern themselves they have information they need to make wise judgments about public policy. i could not agree with you more and right now the american

people do not have the information they need to make up their minds on these programs. i have a bipartisan bill that has the support of 14 of my colleagues and strong support from the business community that has endorsed the principle of transparency and has endorsed my bill specifically. when we met last year when i submitted written comments to your group, i urge you to support the reforms in my bill and i am pleased to report written -- endorses the same measures that are at the core of my bill. i will focus my questions on the transparency reforms that we agree on. first my question is on government transparency. seven months after the snowden leaks, the government has yet to disclose a rough estimate of how many people have had their

information collected in the telephone metadata or prism programs. my bill would force the government to annually disclose an estimate of the number of people who have had their information collected by the nsa under each key surveillance authority. your report supports this. you say that for each key surveillance authorities the government should report publicly on the total number of requests made and the number of individuals whose records have been requested. why did you support this particular transparency reform? >> a theme of our report consistent with your bill which

is sunlight is the best disinfectant and it is important for the american people unless there was a very strong national security justification on the other side. the first and foremost goal is about democratic self-government and a free society. that is one of the things that distinguishes our nation from some others. another idea has to do with economic interests that should not be trivialized. there are american companies that are economic risk because the american government is forcing them to turn over stop. that is not true. it shows it is much narrower and targeted. >> i want to talk about that next. any other comments? i will continue to drill down on this first recommendation

because it is different from what the administration has been saying. it calls for the government to say how many people had their information collected. my bill is for that. last november, representatives from the office of the director of national intelligence and the nsa came before the subcommittee on privacy technology and law which i chair and testified that it will be difficult if not impossible for the government to say how many people had their information collected under these authorities. did the administration communicate this concern to you? if so, why did you find it unpersuasive? >> thank you. we talked in some detail with the administration about transparency provision.

i expressed concern when there is a provider that has a small number of customers that do not tip off the web and surveillance who have been surveilled. when it comes to the number of people would've been touched by the waters, they did not focus on the discussion on that risk of transparency. having talked to the companies on this, if there is cooperative effort to have the companies and providers to work with the government that we are likely to come up with practices that allow estimates. you may not have exact numbers because sometimes you don't know at the same e-mail applies to three people or one person so with precision you might not have exact details but i think you could have a good overall sense of what is happening. >> i am out of my time. we will recess for five minutes. before we do, i want to reiterate this thing about the companies and their ability to disclose because it is hurting them.

we had an analytic firm that stands to lose up to $180 billion by 2016 as a result of the disruption of their services abroad. thank you for being that part of your recommendation. we will recess for five minutes because i have to go vote and i better go now. i am the chair. i call on senator cruz. >> thank you, senator franken. i want to begin by thanking each of the members of the panel.

thanking you for your service in the intelligence community and thank you for your service looking at the difficult and important legal issues and privacy issues that surround this critical area. i think many americans have concerns about the current state of nsa surveillance. i have concerns on two different fronts. i am concerned on the one hand that the federal government has not been effective enough monitoring and surveilling bad guys. we have not succeeded in preventing what should've been preventable terrorist attacks. at the same time, i am concerned that the sweep of the surveillance has been far too

broad with respect to law- abiding citizens. i think a great many americans would prefer to see that reversed. far greater scrutiny on bad guys, people that we have reason to suspect may be planning a terrorist attack, and far more protection for law-abiding citizens who have conducted -- committed no transgressions. i want to begin on targeting bad guys in a want to follow-up with the question senator graham asked earlier concerning assad and maliki. despite all of our surveillance capabilities. despite having significant indications that assad was engaged.

the federal government failed to prevent the horrific terrorist attack that claimed the life of 14 innocents at fort hood. the first question i would like to ask the panel is in your judgment, why is that? why did that prevent us from getting the information and acting on that to prevent that act of terror? >> i would say that is a very important question and your general thought to target through surveillance known bad guys -- that is something we did devote a great deal of intention to -- attention to. the section has not gotten any attention. that recommendation is that we need to expand our authority to track known targets of

counterterrorism. that is a gap in our statutory structure. whether that would apply in any way to the case you are describing, i don't think so but it is an important gap. that one is probably a group we need to get more into the details of that we did -- than we did. >> i will welcome your thoughts as well as how we could've done better. >> it is not something that we as a group looked at. that was not our mandate. i am familiar with the case. i am constrained here because i don't know what is in the unclassified and classified world. we can have a conversation afterward in closed session.

>> a follow-up question for the panel. the same is true with respect to the boston bombers where in that instance we had intelligence from russia that they were having communications with radical islamic groups and yet for whatever reason, their radicalization continued, the government dropped the ball, and they carried out another horrific terrorist attack. did members of the panel had any view as to why our surveillance capability did not provide sufficient information to act upon it to prevent that terrorist attack before it occurred? >> i will tell you in that case there were not any communications between the united states and overseas.

there was no surveillance of those communications that would've provided any information that would've prevented the boston bombings. this is largely a case of domestic radicalization. i think that is the best way to think about it. >> as i understand it, the elder brother after traveling to chechnya and meeting with radical islamic groups, came back and posted on public due to pages -- youtube pages. that does not take extraordinary surveillance capability. it just takes the government looking at what he is saying publicly. >> i was making a different point. you are right. i was making a different point about the actual communications and the collection of those communications. >> that underscores my concerned that the focus of the programs

has been far too much on law- abiding citizens and much too little on people for whom we have significant reason to believe there may be a real danger of terrorism. with respect to the boston bombers, i am not sure there could have been too much surveillance based on the information we had to protect national security. flipping to citizens at large, and i understanding correctly the conclusions that the commission received that in your judgment the metadata program has not to date prevented any significant terrorist attack. is that an accurate understanding? >> that is a fair understanding. we have contributed some useful information but cannot say any specific terrorist attack was

prevented because of the information we learn from the metadata program. >> an additional recommendation is that the government itself stop collecting metadata, but that private companies, the phone companies that have that data, preserve that data and that searches be conducted only when there were specific cause to search rather than the government sweeping in every law-abiding citizen. >> precisely. >> is that the judgment of the commission that if there that i was kept in private hands, at the phone companies already possessed them, that would do nothing to undermine the efficacy of the program preventing future attacks? >> we believe that way of handling the data can be done in

the weight that will not in any way undermine the efficacy of the program. we recognize in a report that it is speculative. if it in fact turns out there are inefficiencies that make it more difficult to use the data in an appropriate way, the upturn of it is to have it held by private holders. >> focusing also on the question of potentially overbroad surveillance -- a couple weeks ago senator sanders wrote a letter to the nsa asking if the nsa had spied or if the nsa is currently spying on members of congress or other american elected officials. the nsa's response to that was that members of congress have the same privacy protections as all u.s. persons which suggests

the answer to that question is affirmative. as i understand it, each of you were granted security clearances, the ability to see classified information. i will ask the pet -- asked the panel -- are you aware has the nsa ever done surveillance on members of congress or other elected american officials? >> we are not aware of any such. one of the things we learned in our review is that there are no targeting by the nsa of people because of their political views, religious convictions, or their political party. in terms of concretely, some details -- we may not have precise questions that every one of which answer to. politics, religion, political views -- that is not what they are interested in. >> we are talking about in recent years.

we are not talking about the 1960's and 1970's when there was a different history of surveillance agencies. >> i mean incurring years -- in current years. i want to clarify one thing you said about religious views. i assume you would agree that a commitment to jihad would not qualify as a religious view and would be a political position and an embrace of violence that merits very close scrutiny to prevent that violence from happening. >> if there is reason to believe the person is threatening the united states, that would not fall between -- under protected religion belief. >> a follow-up question related to members of congress, are any members of the panel aware that the nsa has spied on any of them?

>> we have no information to that. we would not anticipate that. >> i want to thank each of you for being here. the remainder of the committee is off voting so with that we will take a five-minute recess and i expect my colleagues will return. the hearing will commence again. thank you.

>> i am almost afraid to ask what the joke is. those hidden microphones will tell us. i just wanted to note a couple of quotes from your report. one is the question about granting the government authority makes us safety but

whether the additional safety is worth the sacrifice of individual privacy, personal liberty, and public trust. public trust as we know it -- so many times we have to rely on individuals and the public who might give us information that can be valuable but they have to have the public trust. law-enforcement knows this. same with the intelligence community. i will yield. but, in your review, did you identify a difference? i think you already answered this question. a difference between the demonstration of the utility of the government's abilities which is aimed at non-us persons abroad and the phone records program. >> yes, 702 has proven to be much more valuable as a counterterrorism tool than 215. >> thank you very much.

>> mr. morell, how would you characterize the value of the 215 program? if you will, from a safety perspective even if as fast if it has not generated intelligence. i'm interested in your assessment of its values. >> that is where i am. it is absolutely true that 215 has not by itself disrupted, prevented terrorist attacks in the united states, but that does not mean it is not important going forward. as i said in my op-ed, it only needs to be successful once to

be invaluable. one of the ways that i think about this is that many of us have never suffered a fire in our homes but we still all have homeowners insurance to protect against that. that is one of the ways i think about 215. >> i have had the concerned that the prospect of an unauthorized leak was not foreseen by the intelligence community and that there would not appear to be a response that was timely, sensible. they didn't seem to be paired. what is your sense of what the reaction was i the intelligence community? was it a scramble as a look like from the outside? >> i was inside for part of it

and outside for part of it. my sense is that the strategy that was being pursued was not successful. the strategy that was pursued did not deal, did not mitigate the lack of public trust, did not win back any of the public trust. it was absolutely clear to me that and this picks up on something professor stone raised earlier, this was one of the most overseen programs in the history of the intelligence community. >> in the history of the country. >> within nsa, within the executive branch, within the justice department, within the intelligence community, congress, and with the judiciary which is very unusual for intelligence program.

i think there was a sense in the intelligence agencies and the executive branch that that level of oversight was enough to keep the public trust if there was a disclosure and i think that turned out to be wrong. >> i wonder if it might have done better if within the first couple that weeks a full disclosure of how the program had been carefully overseen and came out because it took days initially and weeks before they were as a -- there was a solid view. what you said was one of the clearer expositions we have heard yet. this is one of those cases where the not completely accurate image got across town but for this -- before the truth had its roots on.

this is going to happen again. for the intelligence community not to be prepared for it is a mistake because if we make a hash of what happened by responding to this program, you dial back from that if that is the way you're thinking to be more candid up front and diminishing that risk. we could've been more candid with the american people up right about this program without creating any significant national security laws. that is my thought. my time is running out. i just want to take a moment and thank you for your service to our country. i find you all extremely capable and honorable. i want to thank mr. clark who is one of many things -- who warned

of many things. we could've avoided disaster. >> i am going to yield to senator sessions. i will ask senator blumenthal to take the chair. before i leave -- i have spent decades on this committee. we have had some terrific panels. i cannot think of anybody who brings the wealth and broadness of knowledge to an issue like the five of you do. i say that because you give it a great deal of your time and public service. it is extremely valuable.

whatever we do is going to be influenced heavily by your report. i appreciate that. i know the president also appreciates the amount of time you have done. some of you i go back to longer as i have with mr. clark. mr. morell, in your page. drafted to the cia. the clearness of your briefings were helpful. that is something you hear from both republicans and democrats. i appreciate that.

he has been extremely helpful to this committee. professor stone, thank you so much for the time you ever taken. i will turn it over to senator blumenthal and yield to senator sessions. >> senator leahy has spent a number of years dealing with these issues also. i believe the patriot act he helped craft and we all worked on and spent hours on was not one of these things where you have to reduce constitutional rights in order to protect america. i think that was the wrong characterization of it. i believe everything in that ill was consistent with then existing criminal law and techniques that were used every day by prosecutors in the counties of america, in u.s. attorneys offices. i don't believe there is anything there that we should be apologizing for.

the committee is an excellent committee and a highly intelligent one. i would note that three of the members are never had hands-on experience with this. you have written about it but you have not been on the field directly dealing with these issues. i think anyone would say it is a pro-libertarian panel. i am pleased that you fundamentally agreed with some of what i said. out of recent disclosures and commentary have created the impression that nsa surveillance is indiscriminate and pervasive across the globe. an essay focuses on foreign intelligence information that is relevant to protecting the national security of the united states and its allies. i know you did not say lightly and would not say if you don't believe it. the group found no evidence of any abuse of authority for the

purpose of targeting domestic political activity. it has always been my impression. you also say that in your review you have been covered -- have not uncovered any intent to intrude in people's private lives without justification. the american people are not interesting in what we are saying in our telephone calls. i thank you for that. i believe those who have raised concerns about it could take comfort into that. i was a prosecutor for a long time. i want to raise the question about the metadata. that sounds so awful and scary

that it makes us nervous but in conventional prosecutions in america today a county prosecutor who is interested in knowing who a criminal suspect is talking to issues a subpoena to the phone company and a submit the records to them. they examined the records to see if bad guy one is talking to bad guy two. this is the kind of thing that is done every day in every office. the dea, irs can issue records of saying -- your motel, telephone records. the irs to get every bank records you have administratively. the reason is that these are not their records.

it is not the individual who is being investigated records. you have a diminished expectation of privacy. the supreme court has clearly held this for the past 100 years. the records brought to the united states are in our custody because of the way the computer systems work. we get numbers basically. mr. morell, i guess you have used this system. would you share with us, is there any difference between a traditional issuing of subpoenas and the way this is done in the importance of the government getting the records from the companies involved and then

accessing them -- in bulk and then accessing them? >> i am not the best person to answer that question so let me defer to my colleagues. >> who would like to? mr. stone, i am glad to hear your comment to you on the board of the aclu, is that right? did you support the aclu against the government? >> i had nothing to do with that. >> you don't feel any conflict? >> no. i think what has changed is the nature of the technology. when you talk about subpoenas whether it is through grand jury, typically you are looking

for a very focused type of information relevant to a specific investigation. when you are comparing this to the metadata, you are talking about millions of americans records swept up. >> swept up. it is somewhere in the computer. >> no subpoena has ever been allowed to reach that level. the analogy is a flawed analogy. >> looking at every record that is there, they have to have some sort of valuable for an investigation. >> you were drawing an analogy to the subpoena. a subpoena had to be relevant to a particular inquiry.

the metadata program elicits a vast amounts of data far more than any subpoena in the history of the world has been able to gather. >> the metadata comes in and the only difference is it was in the computers of the phone company but for easier access it is put into the computer of the government somewhere. inquiries only go to those records just like they would have gone to the phone companies. the only difference is for convenience in computer access the government could get it quicker because some of these issues are life and death. >> as the supreme court has recognized a year ago, there are limits to technology now has called into play about how far this doctrine that if you

disclose information to somebody else that you have no reasonable expectation of privacy of the information. the jones case -- five justices suggested that that basic principle that was around for a long time has to be called into question when you get into the world where technology allows -- >> they called into question -- >> nothing we say has nothing to do with the constitution. >> i see no difference. you are accessing the same records whether you get them from the phone company or you get them in bulk. >> i think the direction you were going in is actually quite compatible with the recommendation. our recommendation is not to

eliminate the 215 program but we have a program where the government does not have all the stuff which the government does not have in the cases you have worked on. it gets access to it on a certain showing and that is the model we are suggesting. we suggest is that model won't compromise any national security goal because in cases where time is the essence, you can get it from that. in cases where it is not on the line, you go through the standard legal process. that is what we are building on. >> my time is up. judge casey does not agree. >> thank you, senator sessions. >> i would like to thank the entire panel for your testimony here today and your hard work to make sure we really focus on and get right some of these tough questions.

professor, how did the review groups suggested surrounding the 215 authority addressed the constitutional concerns raised by the judge? >> our task we were asked to do was not focus on constitutional analysis. our task was on what policy should be moving forward. >> do the group's recommendations address those concerns or fail to? >> i think at the professor was saying there was a discussion in the report how metadata looks given the changing technology. in the 1970's, there was a limited number of phone calls. today the number of texts and facebook posts are different. we asked for a study on this

metadata issues because we think the changing facts require some changing law a we don't say it is unconstitutional. >> this new board will be empowered to review the collections and have a new function to respond to whistleblowers. the current one is under resourced relative to its scope over spots ability -- scope of responsibility. authorities without resources can be worse than no authorities at all if they provide a false sense of security. i would be interested in your

view -- what budget would be sufficient to allow this new board to perform its mission? >> i don't have a specific answer for you. it would be a significant more amount of resources. >> the intelligence community and the inspector general exists to ensure legal compliance. it told us that lacks the resources to conduct a thorough review of the 215. resources are needed to make sure the oversight and accountability is ensured. the classified opinions revealed the nsa has exceeded court decisions and attempted to defend those actions in front of the court.

i think it is agreed that was a violation. my concern is that the nsa tried to defend its use of nonapproved selectors. i will be interested in your view why the nsa attempted to defend its illegal actions. what reforms are necessary to encourage the ic to come clean and admit its mistakes? >> there was a lack of understanding and communication between the nsa and the court. there was no intentional attempt to circumvent the court what i think we had a bunch of engineers and computer scientists at nsa talking to a bunch of lawyers at the court and i think there was a lack of understanding about what each side was saying. i believe as soon as the nsa learned the court objections

they rectified the problem. these incidents point to is the need for the court to have more technical staff and resources. just as the other program is underesourced, so is the court. >> are there any other levels that would do with this mismatch? anything about adding an advocate to adding a more adversarial component to the process -- would that also strengthen the court's capabilities? >> there are several recommendations. one is a public advocate in the court and the other a strengthening the ability of the court. another would be creating in the new civil liberties admission, and technology assessment staff. >> my last question -- sections 702 and 215. these are sections about whether has been a lot of public debate. it also recommends greater public disclosure.

the report appropriately does not disclose any additional info. what do you did the group have about any disclose programs? >> there is a great deal of metadata collected by the national security program. we do speak to that. there is a great deal of communications related information collected under the executive order. public attention is focused on 215, but it produces a small percentage of the overall data that is collected. >> thank you to the whole panel for your testimony. >> i want it be known that two of the witnesses were law professors. professor stone taught evidence.

i want to start with some of the recommendations. one of the most prominent recommendations of the review group was that the u.s. government should not hold the metadata but that data should be held by the companies or a third-party. i remember that general alexander said he was open to this idea back in july. do you think this would lead to greater security or do you think there could be a possibility of it being hacked? i would ask the professors if you think the companies would be insisting on protection for liability? >> i was not your professor, thankfully. there has been a very significant information at nsa.

even nsa can have its information stolen, or it is not just commercial entities. i am unaware of people's phone records going into the public record when they were stolen from phone companies. they are there now. we are not suggesting something new. the phone companies have the data. we are suggesting that they keep it rather than the government. rather than leave it with the phone companies, we went the third-party route. you are right here to security of those records would have to be paramount.

i believe security can be achieved from hackers. we have spent a whole chapter on the report talking about how to do that. it is just that people don't do it. >> what about the liability issue? >> that is -- >> the court would provide for more of an adversarial process, to provide for someone to ensure the civil interests wherever presented. what proportion of the cases should be argued by public interest advocates on privacy and liberty? do you see it happening in every case or a percentage of the cases? >> the reason i say approximately small is that an overwhelming majority of the cases do not involve difficult issues of law and policy. one thing we are focused on is the possibility that the public interest advocate would not have as many hours of engagement as a standard lawyer does just because a lot of the cases are routine. we don't have an exact

percentage to where the issues of law or policy are novel then there was a keen importance to make it sure. >> i thought it was a good recommendation. the committee received a letter from judge bates in which he raised questions about proposed reforms like adding a special advocate to the court and recommended that the court be allowed to appoint an advocate on a case-by-case basis. >> we respect and admire his views. we disagreed on that one on the grounds that the judge is not in the ideal position to know whether a particular view needs representation. the judge does not decide whether one or another view gets a lawyer. this is an unusual context. if there was a privacy concern, it is good to have someone that is specially authorized to take account of that concern and

decide whether to participate. >> the public revelation of the surveillance programs, particularly those targeting foreign leaders, has generated a strong outcry from some of our allies including germany and brazil. the review group recommended that the intelligence community limits focuses on foreign leaders. i would ask, mr. morell, in your view, did the surveillance of prime minister merkel meet the standards you are suggesting? >> i can't confirm or deny the surveillance of any foreign leader. i would say that i think it is important policymakers make decisions about collection at that level. that has not been the case here

before. >> the review group also recommended extending the protection of the privacy act of 1974 to foreign citizens. is there a precedent for the government to extend privacy protections for foreign citizens? >> on the privacy act, the department of homeland security has had a policy that should be adopted more broadly which is when there was a mixed system of records and there are u.s. and non-us people, then the non-us people should have access as well. we are building on that precedence. >> thank you. >> thank you all. i regret that osama bin laden brings us to the airport about an hour earlier than we are supposed to. i regret that edward snowden brings us today but i think we have to acknowledge this.

there is a public question about privacy and whether the government is going too far. now that this is a public record, we had this hearing as we should to try to restore the confidence of the american people. several of you are authors and i have read your works. the issue before us today is one where the word is not even found in the constitution -- privacy. we can come to expect and what the court might view as going too far and whether the court of public opinion is going too far. when you consider the great advancement of telephone technology, smartphones, the ubiquitous use of the internet. is it time to revisit whether smith versus maryland is in line with the expectations of privacy?

people stand up in the middle of a plane and broadcast their telephone conversations within earshot. where we know that commercial invasion of our privacy has taken place constantly. circulation of the information by the government is only a fraction of what the private sector is gathering on us every day. tell me what you think the issue of privacy looks like. >> from a high level, we do believe in the current technological environment if people use the internet or the telephone or banks, it is a matter of public policy to protect their privacy and focus on striking the right balance between national security needs and the needs of government to get access to information back to protect us. we were not asked to investigate

the constitutional issue. we were alert to your concerns very much in offering our recommendations. >> if i could attain phone logs of the actual phone numbers people called and know the names of the person they called, i could probably draw some inferences about them, their lives, maybe their intentions? >> unquestionably. metadata is not the same as content but it is something that people are understandably skeptical about the idea that others get access to, especially the government for exactly the reasons you give. >> if you let the telephone companies pertained possession of this data and go after it as needed, what kind of obstacle does that create in going after bad guys? like the boston bombers where we can come up with telephone number and know pretty quickly.

>> because there is reasonable grounds because it can happen in the near future, if time is up the essence, there is no need to go to court. we would design a recommendation and the legislation that would respond in a way that it knowledge is that sometimes you have to move very fast. >> i'm sure this question was raised earlier about adding some balance to the fisa court so there is something akin to adversarial proceedings. what do you feel on the work you've done is the most credible way to establish that? >> one thing is thinking about who those people are institutionally. those who but the advocates would have to have the clearance

because they would have to work in the fisa court. the cases known to them enough so that the next make sense and it may not be a full-time job. it's only occasionally that the minimization happens. we suggested some ideas that have not been suggested in public. the privacy board or whatever going forward, they have some law firm republic interest groups to have three to five years. when they are there to do it, they do it. if you just pop in and out you would not have the other context to do it well. >> we have this quaint concept of an inspector general literally charged with taking a look from an outside point of view and most of them emerge

with some credibility because of this relationship. is that something we can build on. >> my understanding is they have not had a legal function. they have had fraud waste and abuse but if you want the best lawyers you can get for privacy and civil liberties, arguing with the department of justice and thinking about how to staff that do have the good people available, they probably need something else to do when there is not that many cases. >> let me close by saying two things. a pending omnibus bill contains provisions that will finally make public as much as can be made public. it's a lot of specific data about what has been collect did. it's been an issue important to me for a long time and it will

be part of the bill. i support what senator blumenthal is trying to do to make sure that the court is more balanced in its appointees. i think if there was a more diverse selection there would be a more diverse outcome. >> just to pursue senator durbin's point about how to house the special advocate, constitutional advocate, public advocate, the key question is who does he/she works for? my concept in advancing it was that the client is the individual or group whose constitutional rights may be in peril. it really is the constitution. we talked earlier about appearance and perception being important.

housing is important from this perspective. if public defenders in court, and i dealt with a lot of them as a u.s. attorney, were housed in the prosecutor's office, clients coming to be defended would have a totally different perception even though it might actually save money to put them in the prosecutor's office. i think there is a very important analogy here. we have had public defenders who are not full-time. they are not ad hoc. for a long time, people were represented by people hold in to do their duty with minimal pay while juggling other duties. sometimes, it's not clear they have the experience to handle a particular case.

that's why i have advocated a full-time institutionalized separate office that is independent, as independent as possible, because perception is so him. i went to thank you for giving excellent thought to the questions that the senator have raised. one last point. it's about as outdated as i think any supreme court could possibly be given that it was dealing with a different system of information gathering at a different time not only with payphones but literally the wires, the mechanisms, were so different. the outfit in the room here is really the supreme court. many of our colleagues have said we should wait for the supreme court. but we all know the supreme court is not necessarily an

absolutely clear and noncontroversial source of law. we have an equal responsibility, the congress under the united states constitution has an equal responsibility to protect the constitution and indeed to define it. that is why your work, i think i'm has been very important. you have not only given us guidance but great credibility to the direction i believe this will go. if there are other comments, we will hold the record open for one week. senator sessions has asked me to place in the record an opinion article in "the wall street journal." it is on the reality and the nsa reform.

we will hold this record open for one week and thank you both, gentlemen. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] >> as congress begins consideration of the fiscal year 2014 omnibus spending bill, we are joined by eric watson of the hill. what are some of the details we should know about this bill? >> it is about $1 trillion in total. it pushes out the details of the murray budget pact. it was a true bipartisan cover my's. they worked to hash out the differences throughout the federal government, that includes compromises on what

were originally 134 policy riders on everything from the post office, discontinuing saturday mail, to preventing the export-import bank from blocking funds. priorityan important for hal rogers. that was in the bill. the anger was not in the bill, there was no provision blocking funding for obamacare. downis the issue that shut the government for 16 days in october. conservatives can point to the fact that $1 billion has been taken out of the obamacare prevention fund. thatis a slush fund secretary sibelius can dip into to falter obamacare funding. overall, obamacare funding is held at a level where there is no new funding. >> 2014 is an important year for u.s. efforts in afghanistan. how does the omnibus handle war

funding? >> war funding is that $92 billion. it is on the high end. this will help the pentagon deal with spending cuts, about $20 billion in base funding reduction.