at 10 a.m. eastern on c-span. quirks this is a good, just a few weeks ago, this house voted the contras.ng for we decided against contra funding because we decided it is against american tradition to fund a private army whose goal is to overthrow and other government. it was against american tradition to foster killing of civilians. we felt it is against american tradition to abandon the strength of our ideas and replace them only with the .trength of our arsenal now, just a few weeks later, we are against -- we are again facing a contra vote or dwight? is because daniel ortega went to moscow. i am not happy about any nation turning to the soviets for

economic help, but that does not change the contra issue. the president, our president, calls the contras freedom fighters. who are these contras your the vast majority are former some oh zaen -- former somo men. a woman, four months pregnant, was killed at a state owned coffee farm by the contras. she was wounded first, her face shattered by a grenade. a deep knife wound in her side with the unborn fetus protruding. many other unarmed civilians were killed by the contras with their throats cut.

ugly, yes, but we must face this. sure, there is violence on the see iso, which americans increasing. vines on the left and the right must stop. the way to stop it is not by supporting a private, brutal army who wants to overthrow a government of a country the size of iowa. but by doing what america does best, negotiating a peaceful --tlement with a democratic of nations taking the lead. the way to stop this violence is boland amendment, the gephardt amendment, let us not have the blood of the innocents on our hands. -- i say, vote against the michael amendment. >> c-span, created by the cable

companies 35 years ago and brought to you today as a service by your local cable or satellite provider. >> connecticut senator richard blumenthal was a keynote speaker and an event looking at the pfizer court. fisa court. t ize ladies and gentlemen,

welcome. centerional constitution , for those of you have been here before no, is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. as part of our inspiring mission, we are a beautiful museum of we the people and a center of civic education, and america's town hall. it is one place where citizens can come to you the best arguments on all side for the constitutional debates that are riveting the country, and make up your own minds. we have a spectacular series of programs. debated --witz feldman. on march 27, professor years of age will return to talk about

issues at the heart of his new book. today, we will discuss one of the most important and at necessary to debate questions confronting the country today. that is the reform of the foreign intelligence surveillance courts. as we will hear, it is responsible for popularizing secret wars to collect data outside of the ordinary criminal justice process in the service of national security. we will discuss the arguments for and against reforming it. to do so, we are proud to partner with the constitution project based in washington dc. the project is a great organization that, like the national constitution center, brings together experts from all sides of the political spectrum to make recommendations about constitutional and legal reform. it is my great pleasure now to introduce the senior counsel for the constitution project, catherine stern, will make some

internet -- introductory words honorednd introduce our guest speaker, senator richard blumenthal. catherine stern. [applause] >> thank you, jeff, for that welcome -- for the generous welcome. thank you for the staff -- thank you to the staff for helping put on this event. we're going to try to do something difficult today. it may even be impossible. to balance national security and civil liberties, i'm talking about being entertaining and accurate. we're going to try to be frank and open and at the same time deal with the tough questions. helping americans understand what is at stake when our constitution is at risk is the core mission of the constitution project. our organization brings together policy experts, government officials and legal

practitioners from across the political spectrum to foster consensus-based solutions to some of the most difficult constitutional challenges of our time. one of the most puzzling of those challenges is how to continue our tradition of individual privacy in the digital age. at a time when the government's capacity, as well as private industry's capacity for surveillance of our citizens is massively increasing, and the technologies for collecting information are far out tasting the laws that protect us. taken up many fascinating aspects of this problem in his books and essays. we are thrilled to be here with him. from our wonderful community of advocates for government transparency and oversight. to shed some light on the institution that is at the center of the nsa surveillance controversy. i want to thank our distinguished panelists for bringing their expertise, and delightfully verse is a view to

this debate. before we hear from them it is my honest tenant should use -- it is my honor to introduce the senator from connecticut richard blumenthal. he has a long record of serving our country and the state of connecticut as a u.s. attorney for connecticut, as a state rep is additive and senator, and as a five term attorney general. it is my understanding that the very day after the world learned about the and as a posse could program to analyze and collect all of america's phone records, senator blumenthal began working on legislation that we will hear about today. the pfizer court -- the fisa court has been approving these programs behind doors.

senator blumenthal has proposed empowering the special advocate with the power and responsibility to ensure that the publics privacy rights are enforced. we are delighted to join us today to tell us more about this important effort. it is my great pleasure to introduce center richard blumenthal. >> make so much catherine and jeff. thank you for having me here today. when jeff is introducing the constitution project and its partisan mission i was reminded of the story of al smith, the one-time governor of the state of new york. some of you of a certain age may still remember him, as i do. the story is told that he went to sing sing, the penitentiary in new york, to give a speech one evening. he was accustomed to beginning his speeches by saying, my fellow democrats.

but he wasn't sure that every inmate at the penitentiary was a democrat, so he had a fallback line, which was to say -- my friends. again, he wasn't sure that every prisoner was a friend, so he had one last line, which was to say i am glad to see so many of you here tonight. i'm glad to see so many of you here, republican or democrat or independent. this issue should bring us together or divide us without regard to party or partisan differences. i am very grateful for the opportunity to be with you today , and to talk with you about this very difficult issue. difficult to be both entertaining and accurate. by comparison to what the gentleman down the street did, relatively manageable, even if challenging.

you may recall that about a week ago one of my colleagues, senator dianne feinstein, spoke a the senate floor to layout series of very alarming allegations that put the country literally on the cusp of a constitutional crisis. in a very cogent and powerful speech, senator feinstein described her believe that the cia has circumvented the senate intelligence committee's oversight efforts in a number of ways, by stonewalling the getttempts to certain documents. surreptitiously seizing material. but disturbingly, accusing the committee staff of criminal misconduct in an effort to intimidate them. early in the investigation. there may actually be several investigations underway.

at least one by the department of justice. i am reaching the conclusions here as to what the merits are of her allegations, but certainly, when such allegations are made by someone of senator feinstein's stature, especially someone who has been so supportive of the intelligence committee, they have to be regarded as credible and significant. allege facts and potential violations of law that have to be addressed. certainly, the looming issue concerns not only the violation of law that may be involved, but the rule of law is imposed on the intelligence community which operates in shown, and sometimes has that it seeks to operate above the law.

looming ahead as the broader question of whether the intelligence community, which has been afforded so much deference over the past decade, can operate within the apparatus of accountability that apportions power between the branches of government, as the founders thought to do. or profoundly, we have to ask how much unchecked and unmonitored intelligence activity can be consistent with the rule of law. those questions, very simply, cannot be long delayed, in part because of the urgency to maintain our values and in part because a lot of the key statutes expire on june 1, 2015. when you are asked will there be legislation? yes, there almost certainly will be legislation, or a serious attempt, and a bipartisan attempt, to reach legislation.

some of the key statutes expire on june 1, 2015. the rule of law as we know particularly here has been the bedrock principle of american democracy, the lodestar of our republic. living under the rule of law means those certain lines that cannot be crossed, as much as a guarantee of safety might be attractive, we are not willing to pursue it if it involves a -- if it involves abridging certain rights. we are prohibited from pursuing it through a wholesale sacrifice of liberty and privacy and dignity. please can't search houses on a hunch, as i know from my law enforcement days, there is a procedure to obtain warrants , asre there is a search maybe the cia might have done through the fbi before it searched the committee files, if indeed it did so.

government agents can simply listen to our conversations on the phone because they believe there may be something threatening. arbitrary, unconstrained governmental invasion of privacy was the reason that the gentleman down the street got together to rebel and to write the declaration of independence. part of the reason was secret courts operating in secret, like the star chamber, which was an anathema to them. i submit it should be anathema to us today. a court court is such making secret locker secret opinions in secret proceedings, in many respects having an impact on our lives that is , butwn to most americans has huge consequences for the future of our nation. out of my frustration, i will

tell you up front, is a lack of attention to these issues on the part of the american public. he seems so abstruse, technical, difficult to comprehend, and yet they are so consequential for our nation. our current system, with that super court, is the result of a committee commonly known as the church committee, named after senator church, which was formed in 1975 with hearing set reveal how the cia secretly opened americans mail, engaging campaigns of surveillance, and harassment designed to discredit vietnam opponents and journalists and even bugged martin luther king's hotel room, among other activities. imris fonts to these findings, congress passed the foreign intelligence surveillance act, inh we know as pffisa,

1978. it allows for electronic surveillance and the government can show probable cause for an ifividual or an organization it is a foreign power or an agent of a foreign power. those are quotes from the statute. also created a two tiered system composed of what we know and anfisa court appellate court, the fisa court of review. these courts are where the government has to make its or fort for surveillance collection of information. the question really now is, how should the fisa court the reformed, if you believe it should be, in a way that makes it more robust, or capable of protecting individual rights and liberties, and of course this task is challenging because the

nature of surveillance and communication has changed dramatically in the last two or three decades. again, going to the founders of in thiscracy who met very town not far from here, the idea of a telephone would've been unimaginable, but the internet was unimaginable to us a short time ago. the dramatic explosion of means of information and communication would have been certainly unimaginable to the original writers of the fisa act in 1975. reform. a task of i believe we have to address it. again, the act will expire, certain key elements will and june of next year. we have an opportunity and an obligation to address these issues.

the fisau know that court hears arguments from only one side. it operates in secret, hears arguments from only one side, namely the government. the center change our proposed is that -- the central change that i have proposed is that as a lawyer, anyone here who has ,een through the legal training and you don't even need the training to understand, the kitchen table is a good form to comprehend it. the airing of debate happens best when different sides are presented. judges generally agree. nightmare is a defendant representing himself.

judges will insist on appointing --ouncil for defendant counsel fora defendant. as a u.s. attorney ed dreaded defendants are pursuing themselves because the issues could not be aired and debated and considered sufficiently without an advocate for that individual. of course, the supreme court agreed in gideon v wainwright, where it in effect disagreed with judge mccarry, the trial case, whomr. gideon's said that he had given every opportunity to mr. gideon to represent himself, to air his , and he had tried to

be sympathetic to those arguments. the court said he needs a lawyer. he got a lawyer, and the result was different with a lawyer than it was the first time around. there is a lot of practical experience that confirms this idea that the adversarial process works better when it hears from both sides. judges reach better decisions when they hear both sides. summer, in one of his first comments on the meta-data collection revealed by the snowden tapes, president obama said he believes that fisa court would benefit from the addition of a civil liberties advocate. he was somewhat vague at the time, but i took it as confirmation that he agreed that there should be a special advocate or an adversarial

process, more robust than what we have now. but the form of advocate he has endorsed i think can be improved. i thank him for his very thoughtful attention to this issue, but i think that the advocate can be made more givetive if we in effect it a certain form. as i see it, the special advocate must, for example, be able proactively to request for dissipation in fisa court proceedings, and to engage the fisa court of review appellate process for significant legal decisions. that would be a real reform. to thet a cosmetic tweak current process. getting the car to the advocate herself, rather than leaving it entirely in the hands of the court to invite an advocate on occasion when the court thinks it is important, is very

important. we have heard from the privacy and civil liberties oversight board to release some of the judges on the fisa court believe they already have the power to call upon third parties for alternative views, but they have never exercised that power. giving them the option of the in my is ineffective view. the structure requires the aboutte to make decisions when the opposing view should be presented. that is also why i believe that the advocate should be a permanent position with an established office and a staff, not an occasional on-call observer status that the court ars only when it chooses to do so. and legaltual arguments, presented to the court, and take cases through the appellate process, much as an appointed public defender

does now. they are available whether or not the judge things a defendant need a lawyer, when the defendant is a lawyer. the special advocate, some may call him a constitutional advocate, what other spots ability to use -- to protect our rights and liberties whether or not the court thought it was necessary in that case, because courts may not appreciate the importance of issues when they arise, as patricia wald, a very distinguished jurist said. my proposal would bar the advocate from delaying or undercutting the pfizer process -- the fisa process. she and her staff should maintain confidentiality just as any other member of the fisa bar would have to do. it allows the fisa court to , withoutarrant

necessarily the participation of advocate before the proceeding. the challenge could be brought after the war and is granted, after the surveillance is initiated. if there is an exigent circumstance that justifies the warrant being granted, much has of happened in everyday life the criminal law across america where the u.s. attorney does , andi did for years countless others have done, go to a judge, sometimes in the middle of the night, and have the legitimacy of the war and tested afterward. but here, there is no way of many of the targets of the warrants testing its legitimacy because they don't even know it is happening. they won't know it is happening without there being a case in court resulting from a prosecution, or some other

proceeding. adversarialis that argument improves the process, protects our rights, and accountability results from it as well. accountability also requires greater transparency another aspect of my special advocate proposal would require that the fisa court disclose and release decisions and constitute a significant construction or interpretation of law. a significant construction or interpretation of law like the metadata warrant, which was never disclosed until the tapes indicated that this information was being collected. secret law, made secretly, affecting our constitutional rights, again, we should not

tolerate unless there is a greater showing that somehow our national security requires it. and then, for the. of time that it is necessary. information of this of the opinions and rulings of the court would be redacted or summarized to protect class might -- classified details. the release of them and the adversarial process would accomplish a key goal. if we agree on nothing else here today, i think we can reach a consensus that confidence and trust has been eroded and needs to be restored. obviously, the snowden tapes have played a significant role, but the american public needs the assurance that the rule of phrasel be more than a

when it comes to intelligence gathering. public trust also comes from appearance and perception, not just the reality, of a balanced making thesecourt decisions. the fisa court are all appointed by the chief justice of the united states supreme court. without any oversight or confirmation, they are all article three judges so they have been confirmed by the senate as well as appointed by the president. but not for this role. again, without any disrespect, without a scintilla of for the supreme court of the chief justice of the united states, americans may hesitate to trust a court whose members are picked entirely by one man without any kind of review, none, no review

whatsoever. man willicked by one inevitably be more homogeneous, less diverse ideologically, as well as an background, then one assembled by multiple sources. extensive research has shown that judicial decision-making is negatively affected by it byadian -- affected homogeneity. the move toward greater diversity is one i have supported passionately and aggressively. fortunately this president has done as well. that applies to ideological perspective as well. adversarial process and protection of liberties is best guaranteed by that diversity of viewpoint. that's why my proposal to reform

the court focuses on its composition. judges selection format authorizes the chief judge of each judicial district to appoint a member of the pfizer court subject to review and approval by the chief justice. it is really a pretty modest change when you come right down to it. after all, the rhetoric is a veryd away modest change because we want to preserve the confidentiality of the court. we want, in my view, to stick to judges who have artie been confirmed. the alternative of having emery confirmed i think raises the danger of politicizing the process. i'm very sensitive to that concern. this reform, though, would ensure that the judges on the pfizer court represent the broad mainstream of judicial opinion.

it is designed to give greater diversity on the fisa courts without undermining their independence from political , from congress or the president or anyone else. saying something that i think goes without saying. i have the deepest respect for our intelligence community. , patriotic, able americans who serve, sometimes in harms way, with great courage. they perform a vital mission for our country. i have two sons have been in the military, one of the marine corps reserves serving in afghanistan. he is back now and he is in law school. another son who is a navy officer in training out on the west coast. i am a member of the armed services committee, as well as the veterans affairs committee. i know well and appreciate

deeply the threats this country faces. the courage of men and women in -- and and added uniform out of uniform who serve in a diplomat of service as well as our military, and the ways they benefit from the intelligence is gathered by the agencies that too often we take for granted, and too often we criticize and fairly. i am sympathetic to the challenges they face. worthyto make the system of them. best ito make it the can be, just as we expect them to be the best they can be. our intelligence community and our legal framework must be not only worthy of them, but worthy , and of thee constitution that it symbolizes.

privacy, speech, weembly that here today exemplify. i believe that it is possible and necessary to achieve those ends. i believe it is because of my years in the courtroom. at only as a prosecutor but as a defense attorney. legislature,e because our values and ideals don't disappear to the because of enemies like al qaeda. you thinkeally, when about it, the threat of al qaeda makes those values and ideals all more important. it is what those brave men and women seek to uphold when they put themselves in harms way. they're the reason we are here today. by undercutting or undermining

them we make the system unworthy of them. those are high ideals and i know there is hard work to do to match the system with those ideals. your work today, your dedication to those ideals bringing us together today are very much appreciated and i am grateful for this opportunity to be here. thank you. [applause] take a couple of questions. you have a really smart panel ahead so i am not take too long. yes sir? >> to questions. where is the pfizer court? , ift is in washington dc you are referring physically where it is. he -- the judges come to washington dc. >> the second question is, most americans can't tell you who is on dancing with the stars or who

want a voice or who is on walking dead. but they can't tell you anything about the fisa court. do you view the mainstream media is more of a distraction to ?eeping the public dumbed down they're not interested in the fisa court, they are in what is going to be on tv or who has been eliminated from this game sure something like that. >> all of us bear a share for pump -- of responsibly for lack of public attention to important details like that one. who is on the court, where do they come from? there have been some good journalism -- good reporting on the pfizer court that indicated homogeneous mass of the individuals. it is a matter of public record. i don't blame anyone in particular. i think is a feeling that all of us have to address. one way to do it is through this kind of forum.

i think that is why it is so important. >> i totally agree with you on adversarial procedures. insecurity issues, it has been at times very critical. advocates do slow the process. >> i may not have been clear about it, but again, no delay should result from this adversarial process. the challenge to a particular warrant could and probably would be done after the war is granted. remember, right now, as a prosecutor, i go to a judge, in juryffice or i go to grand behind closed doors. the grant me the power to search or surveillance, whether it is a physical break in, for lack of better term, a physical entry is more accurate, or some kind of surveillance.

and then that act by the government is tested later. the same principle would apply here. it could be completely in secret, but the advocate, the constitutional advocate or special advocate could and would challenge a ruling by the fisa court, i zip it -- either before the court estimated decision or possibly on review. , is, the issue for example the broad collection of telephone numbers, all telephone ,umbers of every american authorized. all those legal contentions could be tested and argued through the adversarial process. in the meantime, if there was a need for the government to be

individual an planning some terrorist act, that surveillance could go forward. your question is well taken. it is a point that has to be addressed. if that is not redo it, some other way out to be devised. i've no pride of authorship over any of these specifics. if someone has a better way to do it i welcome it. i simply think that there ought to be an institutional place for the advocate to be on a full-time basis with the power pointse issues at some that guarantees our rights as well as our security. >> thank you for being here, senator. , for whomned snowden some people see as a villain, some people see as a hero. what do you think of allowing a court, or the fisa court, to be who have ard parties

desire to disclose what they believe is illegal government activity, and having the court rule on whether or not that disclosure would be protected. if it were, then the person would not be subject to criminal penalties. separatek that is a set of issues that may need to be addressed. i want to see exactly how the system would operate if there are complaints about lawbreaking, and affect whistleblowing. they could be brought to the fisa court through an advocate or a constitutional advocate. that might be a means to do so, but the main purpose of this advocate, really, is to forestall violations of rights that later would be the subject of complaints by whistleblower -- by a whistleblower. prevent anyto

illegal activity before it occurs than have it be the reason that a whistleblower comes forward. but whistleblowing is a deeply esteemeded and rightly tradition in our government. as attorney general i came to know firsthand the importance of whistleblowers in protecting our rights. we need to guarantee that they are not subject to either retaliation or some other kind as result ofn their blowing the whistle. i am referring to whistleblowing in general, not to snowden. nothing i say here should be intended to -- should be interpreted as condoning or proving what he did. justice jackson said that the constitution is not a suicide pact. one of the things within the constitution, however, is to let the sunshine in as a means of

cleansing. would you consider putting a requirement in that over time the cases before the fisa court would be reported? i think reporting of cases, disclosure of rulings should be whenwhen's full -- possible and when the rulings merit it, regardless of time. it should be done in a way that preserves security. effect summarizing the rulings of the court so that they could be raised in the tank -- another kind of challenges. you can know whether rights have been impinged in the world of electronic communication without the court in effect giving some indication that it has been done. the fourth amendment was framed at a time when generally there were actually physical witnesses

to the english soldiers breaking down a door and rummaging through a person's house, or taking seven to custody, or some other violation -- or taking someone into custody, were some other violation that someone felt was against their basic rights as englishmen. it is not that they felt their rights were novel or original, they are the rights of people who live in a free country, which they thought they did as citizens of the colonies of england. they were just saying we want to protect the rights we think we have right now. those rights are no longer protected or impinged by physical action. you think of the electronic world and all that can be done secretly, and it is really mind-boggling. we need to match that challenge

with a court that issues opinions when it can do so, consistent with our security. you would not want the court saying we just authorized a surveillance on so-and-so, who we think is about to blow up the building or takeover plan or whatever. i'm really stating the obvious to all of you, and even though these principles seem obvious, they're much more difficult to enshrine in words. thank you. [applause] dillman, i just want to thank senator blumenthal again for a speech that was thoughtful, eloquent, nonpartisan, and in the best tradition of defender united states prosecution. we are proud to have you at the national constitution center. [applause] >> let me invite the panelists to join me.

at the front of the room. as they come up, i will introduce them, because it is such a superb group, and you will be thrilled to you the friday of their perspectives. who -- spike bowman absolutely, place it right here. he is the director of the intelligence issues group for the fbi. next, we have judge james roberts. he is a judge on the former surveillance court. he is a member of the we havetion project, that accented joel.

finally, we are thrilled to have angela canterbury, tractor of for government oversight. senator blumenthal has given us three concrete and extremely important proposals for reforming the fisa court. first he said we should -- the congress should create a special advocate to create adversarial proceedings. second, he argued for greater transparency of the courts theirns and disclosure of existence. third, he called for change in a way that the members of court are pointed and said rather than the chief justice of the united states appoint all the members, other procedure should be implement it. i want to discuss each of those proposals. judge robertson, you did something that i can describe from a constitutional perspective as quite as bold and

even heroic, namely he resigned from the foreign intelligence surveillance court because you thought it was not acting consistently with constitutional principles. historically, there is a very small and distinguished group of judges who have resigned from their courts on grounds of constitutional principle. whoe are the judges resigned because they did not want to enforce due to state laws. -- tell us what precisely resigned from the foreign intelligence surveillance court and what you think of senator blumenthal's proposals. >> you have just give me leave to talk for the next hour. [laughter] all, thank you for all the nice things you said. you have asked me exactly why i resigned the fisa court heard it wasn't because the fisa court was acting improperly, it was

because the fisa court was not acting at all. i resigned while i was still an article three judge and i refuse to say anything about why i resigned for a long time. lot of people thought that was cory. it was an cory, it was because i was still a sitting judge and i thought it was improper for me to go public with my criticisms. but now i am retired and i am a civilian and i can say whatever i want to say. the bushd because administration and the nsa were conducting this kind of predecessor of the 215 program without bringing it to the fisa court. ,hey bypassed the fisa court and it seemed to me that the fisa court was supposed to be .cting on issues like this for them to hold up the fisa

court as the protector of our liberties and freedom and at the same time doing and run around -- it seemed to make the pfizer court something of a protecting village, just as a pretend operation. i refuse to go along with that. i resigned. not try to did solicit other judges to resign. i didn't think that was proper, either. that is the answer to your question of why i resigned. when i think of the senators , thesal, first of all nation to be very grateful for senator blumenthal and his and hisip and his focus interest in the subject. summary from the audience mentioned that the country doesn't know much about this and

it doesn't care much about this. it is important that the country know more about it and think more about it and talk more about it. it is wonderful that we're having this discussion. i disagree with the senate on a couple of details of his proposal. the new work backwards, because the third proposal had to do with the way judges are selected. i frankly don't think there's as economic the -- chief justice pointing them. it makes people feel better to have them appointed by the chief judges of the circuits, with the approval of the chief justice of the united states, i agree with the senator, that is a ready minor change, and if it makes people feel better that's fine. , there are2 circuits 11 circuit judges. we would have to add one, but that is a detail. with respect to the senator's proposal that there be more

transparency to the rulings of the pfizer court, i think everybody agrees with that general proposition. the problem is in the details, because the whole snowden was thatf course snowden revealed the capability the government has. it is hard to make the decisions of the pfizer court transparent without very nuanced declassification protocols, which, by the way, under our system, it is the executive branch of government which controls classification. congress doesn't do it, the courts don't do it, the executive branch doesn't do it. that has been set in stone for a long time. the executive branch would have to figure out what is classified and what is not classified.

itm in principle in favor of . we have to have some words in there asking the court to be more transparent and indeed, in lastt months and in the year the court seems to have been doing that. it is getting more transparent. the main point of which i disagree with the senator has to do with the establishment of an office called the office of public advocate. i don't think we need another officer another bureau or another permanent appointee of any kind. most of the work of the pfizer court has to do with individual warrants, just like ordinary everyday search warrants that are issued in courts all over the country. at a know at the percentages, but i would bet that it is north of 90% of the work that the fisa court does today. when i was on the pfizer court that is all we did. ton we need the adversary

look at and a proven study and argue with the court about what is generally referred to as a programmatic work of the pfizer court, we can get into the weeds of what the fisa court does here, but then i really would be taking an hour. i think it started time for me to shut up. but suffice it to say that there are a few areas in which the iszer -- in which the fisa doing work in which i ought to believe -- in which i believe there ought to be an advocate. attorneys selected by the -- which i call pclob, if they would set up the panel, then the pfizer court would reach out to them.

i want to make one point that the senator didn't make. there is a provision in the -- in the in the fisa fisa law. it is very limited and in my view they never have done it. i would require that the pfizer court sits in panels of three judges whenever they are dealing issues or newtic legal issues that have to be sorted out. it has been said that the pfizer court isthat the fisa nothing but a rubber stamp. the two sections of people of been worried about has been sequentially approved by every court judges looked at it over the last many years.

if you had three judges approving that, there'll be some chance of the judges to start arguing with each other. , ie a judges start arguing think i should stop talking. i am hogging the time here. >> not at all. that was superb. we went to dig into the details of the senator's proposals and debate them on this panel, which is mixed in terms of background and perspective. spike, you have great practical experience as deputy general .ounsel of the fbi i want your thoughts in the senators proposal to create a special advocate. in particular, do you think judges are equipped to deal with changing technologies? would a special advocate helped him make those sorts of

decisions? >> well, i have sent literally thousands of fisa wants to the court. it has been my experience that none of the judges, and certainly not the department of justice ever rubberstamped anything we sent from the fbi. it was often like pulling teeth to get warrants over to the court, because they had such oversight from the justice department. this proposal has been around for more than 20 years. not this particular one, but the idea of having a public advocate. i've never really opposed the idea, but i think it is fraught .ith implementation problems i also think, more importantly, that if we had started something like this 20 years ago it would be totally useless today. my reason for that is that technology is rapidly changing everything we do. it is changing our social nuances, however we think is private and what is not.

let me give you a short example. criminalthere is a case called olmsted in which a police officer who was rum -- was at the time, was convicted primarily on telephone conversations that he had. he appealed to the supreme court saying there should have been a warrant to get these. the supreme court said no, your conversation is not tangible. we can hold in our hands, we can grab it. that not within the fourth amendment. mr. olmsted, you're going to jail. that is way things work for a long. of time. to the years, we have been getting gradual changes of things. just recently there was a case before the supreme court in transponder was put on and the person was convicted of a crime. it went to the supreme court. a unanimous decision of the supreme court said no, you needed a warrant to put that on.

that overturned 60 years of practice. is i am getting at here concerned more for the courts ability to understand what is going to happen to them with technology. operationase called shamrock that lasted for about 30 years, by which nsa was looking at foreign issues. it started out perfectly legally based. because of advancing technology debates changed. through the decades nobody ever did anything different. they were always doing the exact same thing they had done before. the fbi was getting information for the nsa, analysts were doing the analysis that they have always done. nobody changed their job, but the technology changed. a change the basis from which they were doing things. they're actually doing something y without knowing it.

think about the 215 program. this is the metadata the nsa is collecting. collecting bulk data. when we have established the 215 program, we never imagined we would collect all data with it hurt we thought it would be something where we would target one person. i'm going to get jeff rosen's typewriter or his computer or something like that. think,s happened now, i is because we have the ability to do something that we didn't wee 10 or 15 years ago, didn't have the ability to store this information 15 years ago. but today we have abilities that we have never done before. the 215 program has morphed into something that we were not thinking about when it was created. my concern is that we are going to have this issue come up. in that olmsted case, the dissent was justice brandeis who said two things. he said one, the telephone thing

is new. we don't know what technology is going to bring us tomorrow. he said the fundamental purpose of the fourth amendment is to keep the government out of your business come out of the individuals business. he says it is the right of individuals to be left alone. my concern here is that we have the ability somehow for the court to understand what the consequences are of the types of decisions that they may be making. earlyurt is made up of senior article three judges who are not technicians, were not engineers. one place i would disagree with the judge is that i am not certain i want a whole bunch of lawyers debating this. i want somebody who understands the technology, and not only the technology, but where it may lead us. >> wonderful. document whenever we

have a hard question here at the constitution center, i ask ww w. bt what would brandeis do. the question on the table is would a special advocate actually solve the problem?

>> they crowned on me for crassness. we are moving on to another of our keynote conversations. conducting that is david graham, senior associate editor for "the atlantic."