there's sort of a romanticized view pushed out there that's attractive to people. i wanted to get your thoughts on the leader of isis. using social media using information to put out a certain image of himself that is not line up with the truth and so how do we, what's your thought on the leader now? i understand we take out a leader and another leader can follow but he seems to have portrayed himself in a certain way. what thauthds do you have for us to undermine the leadership to show they're not really who they per port to be? >> i think he's an spresing figure in this case.

he has a basic biography which is calculated to support the legitimacy of naming him kali frk ff. the image he projects is someone who speaks rarely. as such, he is somewhat replaceable replaceable. you can bring your expectations to who he is and he doesn't have the personality like someone like bin laden did. he may be an important strategic thinker in the group. replacing him may undercut their ability to operate but maybe not. >> how important is it that we thinking about what isis is doing on the ground and trying to establish this.

it gives them a greater ability to recruit because it shows the legitimacy. >> i think the short answer is yes to that. >> one element of this that i would just bring up because we talked about how their loss of territory would undermind their recruiting and it would. isis is also traditionally what happens with groups like this is when the prophesies they are filling turn out to be not correct, they'll double down on violence. we could see very disastrous secondary effects with that.

>> we seen it with al qaeda. >> we seen it with al-shibab. they don't have the same platform isis has built on. >> thank you. >> senator portman. >> thanks mr. chairman. thanks for having the hearing. this has been fascinating. i appreciate the experts coming and talking to us about this. let me give you a case study from ohio, the middle of the country. we're concerned with radicalization. one is christopher lee o'neal. he wanted to come here and bomb the capitol. that happened earlier this year. he's under arrest. just last month columbus was charged.

trying to conduct a terrorist attack here in the united states. one is a classic long wolf right. so he's on the internet, gets radicalized, a loaner. the second is a member of the community in central ohio as i understand it, the somali community. i know members of the community were very concerned about the radicalization. they were engaged and involved in it. the leaders are working hard to have a productive dialogue about it. it's two different changes. also, the lone wolf. i looked at your apiendapend sis

and unbelievable the things they are doing. a sub part of that would be a specific question i've always had. you've got three groups, dhs all working together to try to support the community outreach programs understanding it as mr. shake said the local police. >> yes, they're very different and long wolves have an actual proceeding to what they're doing.

they operate along and don't have an organization and don't have training. i'm glad you mentioned mr. muhammad from cincinnati, ohio because he's the only one that's come back to the united states that's alleged to plan an attack. crucially, he was trained. we need to keep that in mind. the two cases of americans coming back to the united states one is alleged to be trained by al nusra. >> it wasn't al-shibab. it came from the community. >> i think in that particular case it wasn't in the documents.

he went to an unspecified training camp while he was posting about the islamic state. in terms of the problems, these are two different problems. we could see isis trying to bridge the two to coordinate loosely lone wolf activity with terrorist type activity. in the case of the attorney, this may be a dry run to see what happens when you see somebody back. we have seen that isis has had return fighters who have been active in europe. we've seen at least one case of what was described by investigators as an isis operational cell in belgium. there's not much reason to believe they wouldn't try this sort of thing. we need to keep an eye on this as it develops. the lone wolf piece of it is eds for them.

its something they have proven they are good at relative to other groups. it's going to capture a lot of headlines for them with a lot of -- without a big investment. the question is how much they want to invest in attacks here. that's unclear right now. >> could you talk about the coordination between dhs and the fbi and the nctc? >> yeah, there is a dhs coordinator. david gertson comes from a civil liberties background and i was surprised to see dhs putting that kind of resource in the area. the office of civil rights and civil liberties is looking at how to avoid the securitization aspect of it. it's really poisonous to the cve branding.

community groups were giving a false narrative of what the government is trying to do. if i could quickly make a point on the lone wolf, what kind of lone wolves are we talks about? i call them isis zombies. these are the self-activating, might have mental health issues, low level of competencies and then you can have directed attackers who are syria returnees who have a level of competence who one person can pull off a quiet effective attack. in pairs, of course. only two guys did what they did. you could easily have a cell of six people, three two-man teams to do simultaneous attacks and cause great disruption. they're again a number of threats in that spectrum. >> back to the community for a

second. you were making the point that we need to do the best practices community by community. local face was important. i said the somali community in ohio has been very involved and i think in a productive dialogue. the federal government where we have responsibility coordinating between the three agencies i mentioned and perhaps some other agencies that are more on the intelligent side. is that working or should there be more accountability that comes from more definitive responsibility? >> it is working. i am positive on that side. there was no coordinator before. now that there is a coordinator and that is happening is a positive step. it's running into the issues of critics saying, you know, these are just, this is just an excuse to intelligence gather. i think dhs and their particular mechanisms working on cve are trying to navigate the space as

best as possible. >> thanks, senator portman. we'll start another round. i started my opening statement with description of the posting with the claim that there's 71 trained fighters and 23 of you accepting assignments. nobody knows whether that's bluster or real. is that an unprecedented posting? have we seen similar things like that? similar threats that haven't panned out, anybody? >> i think we have multiple times times. it's pretty precedent. the volume of material they put out is just truly extensive and it comes in a lot of different formats. they've made a variety of threats with greater, more or less over time.

one of the reasons was it was something they had actually specifically talked about that had turned into an attack and that was unusual because they create so much noise that that needle in the hay stack can be very difficult to detect. >> so you take that with a great deal of skepticism. it's the attempted winning message. >> yeah, i think that you know certainly, they have dozens to low hundreds of supporters in this country and some of those people may be prepared to act and i don't think there's anything remotely as organized as what that described. >> certainly, in your testimony and in both written and oral you were talking about the rise of the brand of isis but they're also very vulnerable to the reversal of that. i hope that's true.

i also understand strategically they've made a lot of enemies and they're being attacked on a number of different fronts. the state of the goal of this administration is defeat isis. i've asked administration officials in the past what does defeat look like? define it. i would like to have you gentleman take a crack at what does defeat look like to you and how achieveable is that? >> i think there's actually a very clear thing that defeat means in this context which isn't true of other groups. they have staked their legitimacy to the continuing viability and if the cal fit is no longer viable they could lose the legitimacy quickly. if you're able to make it no longer a viable entity and no longer received as a viable entity, that point, they have lost. their narrative would be

-- won't be completely dead. the arguments, they have certain outs that for example they believe at some point there would be a grand battle and they would be crushed. essentially, it means you make this already marginal movement much, much more marginal. let me add one final thing. this ties into the way we are conceptualizing communities. sometimes we talk about what the community could do to delegitimize the message? for the united states, if we had a 5% approval rating, we would think that's an awful thing. for isis, they can have a 5% approval rating and they're dealing with it. they're not dealing with the whole movement. there are many within the jihadist movement who argue against isis. the question is not how do we change an entire community but how do we stop this fringe

group from spurring people to action. that's why this legitimacy of the caliphate, in my view, has a disproportionate impact on their ability to remain viable. >> does anyone else have different definition of defeat? >> i think we are best served by strategies that encourage isis to fail on its own terms. in cutting it off economically an internal collapse or a major schism inside the group would be better for us than a forcible ejection from their territory especially if that ejection was done through american motor. >> the defeat, how it looks like is the denial of the territory. >> it's the end of the territory but not the end of the story. they already have branches and presence in nigeria and libya. >> an important point. i'm glad you pointed that out, again, anybody else have a different definition of defeat?

my next question is i'm no military expert and i don't think we have one on the panel no offense. you have expertise that has been very valuable here. how far away are we from that definition of defeat? >> as you said, i don't think anyone on the panel could say. number one, looking to internal resistance movements is very important. i agree with j.m. that the end of the day if the defeat comes from within, that's going to be a much more resounding defeat. >> how possible is that? >> we already see were distance movements in some areas. -- resistance movements in some areas. the question is how, there's two things to this. number one is how robust are they? in the past we saw very robust instance to them. the u.s. played a role in helping to insure they weren't destroyed. a lot of the movements are also people we don't like. we have on the one hand probably

baptist resistance movements and i would say almost certainly you have al qaeda resistance movements which plays in the struggle of struggle. -- the struggle within jihadism. number two, internal squabbles. there was a question about baghdadi. while i think that baghdad is replaceable, once you have a succession, especially with an organization like that, that might cause greater mag menation with isis. the final thing we look to is you've given they're a bit overstretched militarily. you could possibly see a rapid reversal just like when the u.s. engaged in the campaign early in the iraq war and afghanistan war and also in libya. there were very rapid reversals of the enemy trying to hold territory. it is hard to hold territory particularly when your population isn't doing.

-- is not happy with what you are doing. >> talking about engagement with communities and understanding local police all the better but how do we find more move and shakes? how do we find more people like you that have had a change of and your -- change of heart and your capacity and your capability to turn people away from this? >> i wish we could clone me. >> i think we all do as well. >> i try to do the right thing. i got here because i believe i did make the right decisions. a lot of people may not be ready to do that. when we say empowerment it needs to be clear for the individuals who are back. the intelligence community knows

who these people are. after they've been vetted, and maybe they need continual monitoring, but to have them step up. go to muslim conferences and let them be seen on main stream media where people hear the message. i don't want to be the only person. a lot of times i feel frustrated and see i'm the only guy doing it. everyone is talking about counter messaging. nobody's doing enough of it. there are others like me out there that just don't know how to come forward and so they will need some direction to do that. >> i think i speak for all of us when i say god bless you for what you're doing. senator carper. >> i'm tom carper and i approve that message. god bless you. this one for all you, please. i want to say do you pronounce your name mubin? >> it's mubin. >> have you ever been called mubin. >> yes. then i got called bin, then bin laden.

then it stopped being funny. >> we have a ben, not like bin laden. several of my colleagues said in order for the u.s. to have success against al qaeda and isis, you must adequately define the problem and my enemy. they suggest we should announce that u.s. is in war which is -- is at war with islamic extremism. in your opinion, is it necessary or beneficial for the u.s. to define isis and al qaeda in this manner? >> the question really is what is the benefit of doing so? i'm not sure that there's a benefit in the inexplicitly emphasizing we're war with radical islam. there's a question embedded with

that, which is, what is radical islam? in libya, one of the problems is the dignity faction, very high he's their commander in chief defines radical islam, to find the enemy, as including islamists who work in the political process and jihadist organizations. it makes it if one were to support his organization would make it a civil war that's much bloodier and much more defying than it should be. secondly, the administration has moved away from really using religious rhetoric. that's a reasonable thing to do in terms of public messages. the area in which i sometimes disagree is that i think if we as analysts aren't able to process the i hadcommence, it's -- the ideological dimension, we are at a disadvantage. i don't think it is advantageous for the u.s. to make its enemy radical islam.

>> terrorists in islamic costume. it uses the adjective "islamic" in the correct way. i believe islamic state is an oxymoron. if i could impose to muslim term for these people, and i've given in scriptural references, they are the dogs of hell. we believe in the islamic tradition that these people subscribe to that. the anti christ himself emerging from the last remanence. those are the two terms i encourage using. >> we need to understand the

religious dimension of this as people studying the problem in terms of public dialogue and in terms of motivation of this we must name the enemy kind of motive, you know, the thing that i think about when i think about this is in 2013 i did a study of white supremacists' use of twitter and found the people following premises on twitter talked continually and primarily about main stream conservative republican politics. we don't insist that neo-nazis be reserved -- be referred to as conservative radicals or republican radicals and i think if it's a double standard, it's easy to insist when it's minority. >> all right. thanks. >> the u.s. government should be very careful about using these terms. the question has something to do

with islam. however difficult that is to say. they are two different aspects of the problem. >> as you know in religion in this country, i won't speak about other countries but in the protestant states, we have many flavors. protestants, methodist baptist presbyterians, the list goes on. when we think of the muslim faith, it's not just one or two but many. we oftentimes think of shia and sunni. it's not that simple. when you look at the isis, al qaeda, the folks with domination and destruction, i don't notice

as much shia involvement. is that my imagination or not? can you speak to that form? >> with respect to isis and al qaeda you don't have share -- don't have shia involvement. both of them are sunni movements. isis is vehemently anti-shia. al qaeda is anti-shia, but has tried to restrain that of it. when you think about shia movements, hezbollah is the primary one. you also have movements you are kind of part of our coalition in iraq. these nonstate shia militias. they pose their own set of problems. if you look at what they are doing, they are brutalizing the sunni population. that could create, make this a longer term problem. so yes, in terms of isis, al qaeda qaeda, absolutely. i certainly wouldn't factor out the importance of some of these shia militant nonstate groups

and one person who has done good on this is phillip at the washington institute for near he's policy, releasing a major monograph on this earlier this year which is essential with reading for understanding that particular aspect of this conflict. >> all right. thanks. last question, if i could. could you share with us the story of omar and your experiences with him, please? >> he was an alabama native. he was born in a family to a syrian father and and i respect like -- and an irish catholic mother. he became radicalized and joined al-shibab. where i came in the story is after he joined he got there and discovered things were not to his liking. foreign fighters were not being treated well. they had a nasty habit of

assassinating al qaeda. there was corruption. he took to the internet and put out a video saying look, i have these problems with them and expressed my opinions and now they're trying to kill me and i need help. this plea was directed to al qaeda central. he imagined someone from al qaeda would ride in to save him which did not happen. he in many ways, was a vanguard of this emergence of this movement on social media. and not the only one by any stretch. prior to about 2012, 2013, the jihadist use of social media was much lower and because of omar but also because of other dissenters from the jihadi movement, people started getting online and they started coming online to argue with omar so they dispatched people to come out and say this guy is a lie

and people popped up to push back on that and it escalated from there. same thing happening from the al qaeda context in the forums. i had an extended correspondence. it was unusual. some of my comments about the remote intimacy and the feeling of knowing somebody on social media are informed by that. you know, when you talk to somebody briefly, every day, or every couple of days you can get a sense of them as a person which may be artificial and inflated in your head but they become much more real to you than somebody you're reading about or somebody you correspond

with by a post. >> very interesting, very informative. >> i want to thank the panel so much for being here today and really on your written testimony was so strong and put my staff to thinking about these issues in many layers and i'm grate. -- and i'm grateful for that. in the final minutes of this hearing i would just like the ask you all if you are a senator and i know that's a scary prospect, but if you all were senators or even in a high level executive position and were looking at the issue of counter communications, we use words like rudimentary before. the vision we're trying to get to, if you could push for two years and the chairperson said this should make us think about legislation, what specifically would in terms of strategy and tactics would you want to see being implemented on a broader scale by 2016, 2017. anybody can pick that up. maybe we can go online. >> i think we often look at this

problem in a way that's very inefficient and isn't getting to the solution. you in your previous testimony spoke to this. i referenced the u.s. government as a legacy industry and i don't say that lightly. a lot of established companies have seen it beneficial to create a start up in the accompany. that's been a very successful thing for a number of companies to do. i point into it the tax company as one who did a good job of creating an interesting tax app where people through their cell phone could get all tax documents. they did this very much like the start up would do. creating the start up within a broader accompany. -- a broader company. with respect to this specific issue, social media, i would want to see a start up within the u.s. government. you would want to get the best people on board and there's a few layers in that. one is are we able to work with the right people?

yesterday i spent the morning with a businessman who owed owner a media accompany who had these anti-extremism ads on his computer that his company put together. he knows the region well and looking to shop around. the production value was extraordinarily high. are we getting the right value? do we have the right people in place multiple things make it hard to have the right people in place. one of the things i would look at is looking at the broader rules that prevent us as a government from having the best people in place to tackle the problems. >> i want to interrupt because i want to get through the whole panel. anything you would like the provide in the days after the hearing of that image you said, i would love to pounce on because i think you're speaking not only a truth but you're speaking an urgent truth. just to move in. >> very quickly. subject experts to guide and train whether there's law enforcement, military, whatever

it is. ultimately, an autonomy of efforts on the ground. if i can quote briefly, to be like water, formless and a's. >> i think it is an important point, because often you can de-legit economize the organic -- delegitimize the organic voices when you put a u.s. government stamp on that. it's important to have strategies that create an atmosphere in which the voices can emerge without being delegitimized by the u.s. government. >> we're getting creamed on social media. we do not do propaganda well because we have principles we adhere to that adversaries do not. in terms of truthfulness and fairness.

we talk about sfce. they're working with a hand full of twitter accounts. what would have an impact and get around some of the log jams of government in terms of content would be to have hundreds or thousands of accounts putting out even very innocuous messaging to get us into the space. we can refine the messaging as we go. there's a risk in government that prevents us from doing things that are experimental and daring in that space. if we're out in the space first then we can figure out where to take the ship after then. >> there's a good story going on with turkey. if you look at isis' language, propaganda, they're saying it's not your friend. we should be giving every

technical assistance to turkey and reinforcing and congratulating them. the other thing we should do is to be building a database of every foreign fighter from the west. we know one in nine foreign fighters returning to the u.s. will engage in terrorism. we need to know exactly who these people are to the best of our ability. >> gentleman, thank you very much for a great panel and for your work on these issues. i'm grateful. i've learned a lot. >> thanks. >> other experts you can put us in terms of how do we do this? is an insight government outside, whatever? it's urgent.

one thing i do like to do is provide the witnesses a final bite of the apple here. if there's something you want to get off your chest. a final statement. >> looking forward, we have a chance not to have a hearing like this five years from now. the idea that we're going to turn off the lights of our presence there on december 21st, 2016, and the afghans would want us to stay. we were attacked from there obviously on 911. it's our interest to say we plan to stay. we have an agreement for 2024. the work has already been laid out. i'm looking forward, this is a proactive measure to prevent having the same kind of hearing several years from now.

i hope -- >> i hope we've learned that failed states are not good for security. >> indeed. >> i think isis is the radical social change ahead of us and we need to be prepared to see what happens when people can communicate in these daily routine ways with people of similar interest around the world and you can travel to join somebody. i think we're going to see social networks and societies that are going to be sorting themselves out into groups that are cloistered around specific interest and unfortunately we're seeing what i would hope would be the worst example of that as the first. there's potential with how we deal with each other as human beings. >> i fear that is a future reality. mr. shake. >> thank you. very quickly, i guess on the muslim side of things, just given the things that's

happened, we really need to pay attention to the marginalization narrative. i think muslims are your best partners in this. i think they understand that we can't do it without each other. it's a common enemy. they're not going to think twice. if i'm there with my family i'll be killed just along with everyone else. we're in this together. let's move together. >> you can help us make those connections. >> we're ready for an era of radical change. the question for us is are we up for this new era? we've grown content with a system in which a lot of things don't work. we try to address problems and it gets lost and there's a process and everyone's waiting for someone else to do something and what we're getting in terms of output is so some optimalub-optimal

if the u.s. government were a corporation people would lose their jobs. the questions are can we move fast enough? if so, what can we do to slash the obstacles and are we transit parent enough both internally in terms of getting by in the government and also externality getting by publicly and in the broader world community. that is absolutely true. we've talked a number of times how to u.s. has a bad brand. that's absolutely true. no question about that. i also think looking at the big picture, we shouldn't be content with this. the u.s. is a great country. we shouldn't be content with the u.s. having a bad brand. that's also one of those big issues we should try to change and make sure we can have the right people in place who can bring the right idea. right now, having the right people in place is something hard for the government to do. that should change. >> again, having coming from manufacturing background seeing a lot of problems with the process starts with the reality. understanding exactly what it is

and set yourself achievable goals. i think that today's hearing has laid out a reality i wish weren't true. i wish we didn't have to face it. we can't keep our head buried in the sand. i want to thank the witnesses for your systems and answers. thank you for doing what you're doing. thank you all for doing what you're doing. this hearing record will remain open for 15 days until may 22nd at 5:00 p.m. this hearing is adjourned. [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

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peter sweitzer on his next book clinton cash. the untold story of how businesses made bill and hillary clinton rich. looking at the fiscal health of state governments and pension systems. with sheryl lee hill and tracy gordon. washington journal, live every morning on c-span at 7:00 a.m. eastern. with your calls and comments on facebook and twitter. >> on thursday, the federal appeals court ruled -- a discussion on the relationship between government surveillance and transparency. focusing on oversight. you can watch that life, starting at 2:00 30 a.m. here on c-span. >> they were wise and mothers.

some had children and grandchildren who became presidents and politicians. they dealt with the joys and trials of motherhood. the pleasure and chaos of raising small children. the tragedy of loss. just in time for mother's day first ladies looks at the lives of every first lady in american history. many of whom raise families in the white house. lively stories of women. and illuminating and inspiring read, based on original interviews, published by public affairs. it is available as a hardcover or e-book. it makes a great mother's day gift. from your favorite bookstore or online bookseller. >> this sunday night at 8:00 p.m. eastern, first ladies

influence and image. we'll take a look at the lives of two first ladies. elizabeth monroe spoke french inside the white house. she gained a reputation for being queenly by her critics. louisa catherine atoms is the only first lady born outside of the united states. she played an important role in her husband's 1824 presidential -- and her husband's 1824 presidential campaign. elizabeth monroe and louisa catherine atoms, sunday night at 8:00 p.m. eastern. on first ladies, influence and image. examining the lives of the women who filled the position of first lady and their influence on the presidency. from martha washington to michelle obama. sundays at 8:00 p.m. eastern. on c-span3. >> on thursday, the second court of appeals ruled the nsa's

collection program is not authorized by the patriot act. it exceeds the scope of what congress authorized. next, the argument of aclu versus clapper. this is one hour and 45 minutes. it was an hour and 45 minutes. >> please be seated everyone. >> good morning. we are about to proceed here the case of american civil liberties union versus clapper. this case apparently is such sufficient interest that is being broadcast. i don't know who is going to watch it if anyone but to the extent that it's going to be

watched by people who will art lawyers and aren't familiar with appellate argument i thought i would say one thing about what is not likely to be seen here. this case is about the both data collection program operated by the national security agency. what viewers are about to see is not a debate on the merits of that program whether it's a good thing or a bad thing. that is for two reasons. one is a matter of substance. the issues before us start with legal issues about whether this has the jurisdiction to resolve any or all of the questions raised by the plaintiffs and as they continue the questions raised by the plaintiffs are not about whether the program is a good thing or a bad thing but about whether it's been authorized or perhaps forbidden

by specific statutory provisions in congress and provisions of the constitution of the united states. it's also not a debate as a matter of reform. the procedure here is going to involve voters making arguments and are likely to be interrupted and asked a lot of questions by the judges. that is not because we are rude or because we don't want them to make their case and an uninterrupted manner. they have already had the opportunity to present in writing their positions in a non-interrupted manner. this is to some degree our time to ask questions of the lawyers to codify the points they are making and the implications of those points to perhaps raise issues that haven't been addressed by the parties and to give each side the opportunity and indeed the obligation to not just say their best points but to respond to the best winds of

the other side. so it's not going to be a free ranging ranging debate wherever but he gets to say anything they want about these programs. it's going to be much more primitive than not. so i don't know whether that was useful or not. you are are lawyers and you are to know what's going to happen. you may proceed. >> thank you your honor. good morning and may it please the court. every day the nsa collects records of the phonecalls made -- >> i'm going to as reciter recommend to interrupt you at the outset. there are essentially questions of fact and my kind of find it difficult to approach this argument without understanding

that. one is that as i read them and i did read them in some cases more than once, it's not clear to me whether e-mails are covered by this program are not. it's a big secret as to whether they are not that i don't know sitting here whether i can get ahold of all of my mistresses and do it by e-mail because the government can't watch. i am sure my wife is watching this program. but i'm terribly serious about the question of insofar as we allow to know you are loved to know our e-mails covered in to what extent is the first question. >> e-mails are not covered by this program. this program is solely concerned with records of phonecalls made by americans every day. we have had operated programs in the past with similar interpretations that allow us to collect the same information for e-mail but that is not what this case concerns.

>> okay so we cannot take into account one way or the other whether somebody can say and lord knows i mean this very seriously, say to a co-conspirator of some sort don't use the phone anymore anyhow. >> i'd think the court can take that into account when it considers the interpretation of the word. i think the court can take it into account when it considers the wrath of the government's interpretation of the fifth and fourth amendment jurisprudence. >> is your position that the government is correct here than congress has authorized the same sort of -- with respect to rewards bank records in the country? >> that's exactly right. inspection to 15 permits local election than bulk collection

would be permitted not just for phone records but for any records notches under section 215 but under every run-of-the-mill subpoena statute in notches in the context of terrorism investigations but the context of investigations of essentially any crime involving more than one person. >> let me ask this. each remains in the possession of telephone companies and tens of hundreds of subpoenas to get the same. [inaudible] we don't challenge the government's ability records from the telephone companies or any other companies. >> but are you saying because the government, because there have a number of the fbi or whatever organization comes and

says we have a number that the party asked for. we want to phone companies to apply this number across the dataset assuming it's the dataset, the same dataset that the government currently has. i'm asking is he your position is a constitutional or unconstitutional? >> it would be constitutional for the government to issue a targeted demand for limited set of data as it has always done. what is unconstitutional about this program are several things. first is the government is collecting in bulk everything at the outset in a way that has never been permitted either as a statutory matter or a constitutional matter and second once the government has that information in its possession at runs queries on that data but her principle complaint is about the government's collection of that information. >> but that raises what i said was going to be my second question and that is there appears --

this case was brought was being done less than a week after the disclosure of the program if i'm not mistaken and there has been a certain amount of water under the bridge since. and what we refer to technically as -- that is to say the government's brief they mention three things. one if i remember two degrees of separation rather than three and also having to get the fisa court's approval to the court entering a query at least that's my understanding is the second thing that has been done already. in the third thing is this notion that they are going to go back. they haven't yet but they are going to go back to congress and they are going to say no more we don't want to do this anymore. we want to keep all this information in the hands of the service providers and instead of

being able to query them in one way or another and i gather it's not a simple thing to do but we are going to take this out of the hands of the government and out of the data that will no longer be sitting there in the hands of the government and will be put back where it started and will be queried from their. if that was done if congress were to pass into law would essentially end the controversy here? i mean there is kind of a technical question as to what you're standing might be if they did that. leaving that aside i would have thought that if they did with the president said in march they were going to do you would have embraced it and said yeah that's why we started this.

i can't apologize but i think senator aiken 40 some odd years ago said to withdraw. >> we would love it if the government and of the ball collection of phone records and if the government did that and purged or her records from the database as a currently has that would resolve a think everything that's been put in place put it issue but that that is not the current state of affairs. and i think it would be maybe unwise to expect congress or were then asked to act in that way. there were two bills won before the house in one before the senate that have differences that happened to reconcile those differences and there are only a handful of days left in the legislative session of this term. >> i understand there are other things. >> right and i should say it's ongoing on a daily basis and

even if congress acts in several months we are entitled to remedy today's violations that continue and are ongoing. so if i may i will return where i began with a statute which is a think and narrowed the ground for decision. we essentially have two decisions under section 215. >> the government insists that we don't have jurisdiction to reach statutory issues because congress has precluded implicitly what would normally be our jurisdiction under the nsa procedure act. and i assume you are going to address that. >> i'm going to address that. the government has a wrong for a number of reasons. first the apa creates a strong injunctive claims challenging illegal agency conduct in that presumption can only be overcome. if there is clear and convincing evidence that congress intended to preclude the injunctive

claims such as the one we have here and there simply isn't that evidence. the government appoints first to section 2712 of the communications act but that statute or its terms is preclusive has claimed within his purview. section 215 is simply not within the purview of section 2712. applies to several unrelated subchapters of fisa and not the government intends that it applied in a textual manner to our argument here. the government also argues that section 215 itself implicitly precludes their claims. the dispute court has made clear time and again the congress's providing for a call affection for one class of defendants does not in and of itself deprive other plaintiffs of the other action. there were the case that presumption review under the epa is justice scalia said in sackett versus epa would not be much of her presumption at all. instead the question turns on

one of congressional intent, what the congress intended when it enacted 215? i think the legislative record is clear. congress enacted the recipient review procedures up to 15 after a district court in the southern district court of new york had invalidated the national security statute because it failed to provide a clear avenue for review were recipients of national security letters. congress fix that problem in 2006 and similarly provided the same legislation a review for recipient section 215 orders but it made no provision at all and spoke not all about review. >> perhaps the purse either would make clear as to how we are going to deal with the red light after 12 minutes i should say. we will go on as long as we find it valuable to go on. >> i should warn you i went on the c-span web site. that's how technical i am and

with the purpose of seeing what's c-span stands for which i would have be happy to share with you another time but i found out that they would assess here they have set aside two hours for this. so we will go on. go ahead. >> thank you. i think what i'm saying is that the legislative history of section 215 make clear there are specific review procedures. the question whether congress wanted it target the 215 orders to have available statutory review. in that context where the legislative intent cannot be discerned the default -- default rule of the epa provides for injunctive relief. >> and then with respect to the government makes an argument

further that no one would anticipate a lawsuit like this one brought by someone whose records were commanded because the intent was people in your position would never know this was going on. does that mean congress didn't face this kind of lawsuit? >> no and this is the point at which we disagree with the government. congress clearly provided for the possibility that targets up to 15 orders would learn about those orders. it they contemplated that recipients would have a right to challenge the gag orders imposed upon their ability to tell the customers about the orders and they might in due course tell the customers. i think congress clearly contemplated that target that it did not then go on to preclude whatever claims that might have wanted to preclude. i think congress simply had no view on the matter. >> recipients which is the service companies and not

individuals whose records were being collected. >> i'm talking about the gag orders imposed on recipients of 215. those recipients can challenge this gag order provisions. >> a person whose records were at issue learned it. >> that's exactly right and there's something bizarre about the government's argument. it gives congress the intent to provide this court for a narrower path of decision. government contends their constitutional claims are precluded and there's no question this court will have to have the least resolve our constitutional claims of the only claim of preclusion is the narrow ground for decision would not be available. i think it's a strange intent to attribute congress and it's not really a coherent theory offered by the government on why congress would have wanted to preclude their statutory claim knowing full well that our constitutional one preceded it

read. >> congress essentially gave that talk at the time. i'm not sure that necessarily would change but when you are talking about the statute congress did press the issue of the recipient. is there anything to suggest that congress at the time that they were dealing with the recipient thought of possibly having the ability to -- the statute? >> i don't think there's anything in the legislative history and that i think is fatal to the government's claim because in that situation where there's no intent one way or the other the background rule of the apa controlled it and it's important to point out that when congress amended section 2152 at review procedures it has the government its view of the necessity of those procedures in the government went to congress and said we seek as a statutory matter that there is already an

avenue for judicial review for recipients of these orders. that was their position in the litigation over the national security statute and that was also the position in congress. they said they don't think that clarification of the law is necessary that we say it does no harm. it clarifies the issue under judicial review that the government told the district court was available to recipients of these orders so congress is addressing that narrow problem of it being essentially unconstitutional or congress not to have provided ready judicial review for recipients. >> with respect to the secrecy point is that if congress didn't imagine that this thing was ever likely to happen on the argument that they should have foreseen this possibility in some circumstances but if they think about this at all then you went

to codas we are not looking for evidence of the legislative intent to create a right to judicial review. your position is that that's is that started under the apa and less there is evidence of a judicial intent of intention to preclude a judicial review. >> the presumption created by the apa the way that your honor use it is the way the supreme court had articulated it time and again and that's the government's burden in this case to show by clear and convincing evidence that congress intended to preclude our claims not our burden to demonstrate that congress intended to create them them. if i may as well move on to her statutory claim. as i said before her first claim is that section 215 simply does not apply. in the very same statute that congress enacted section 215 in 2001 it added a provision to big historic medications that are

giving the government from acquiring phone numbers. he created exceptions to that provision that section 215 is not on the list of those exceptions. that is critical because under settled principles of statutory construction that specific rotation in the historic communications act supersedes the general granted authority under section 215 and indeed in the past the government agreed with that very principle. when they were confronted by a senator who worried that the privacy protections might yield to section 215 the department of justice assured that senator that the privacy protections in the act would not yield that they tromped and affect the general authority of section 215. and they agreed with the related proposition which is that the exception in the act are exclusive. it is not for the government to

refer additional statutes already created by congress to the background rule the privacy established by the historic medications that. that is the government's official decision to be made in a memo in 20092 the fbi concerning the scope of the statute. >> if we agreed with you about this proposition about the historic communications act that unless you are also writing about the meaning of relevance that this would be something of a victory for you or a transient victory for you? in other words one of your arguments about the relevance issue is that if we interpret relevance broadly in section 215 is the government wants to do than the government could get the same kind of record out of the di administrative subpoenas for example. that kind of request is covered as an exception of the historic

communications act. >> not exactly in part because the communications act limits the records the government can acquire. for example it could only acquire the originating phone numbers the receiving phone number and information about the juror -- under the administrative subpoenas but they couldn't acquire things like the identifying device number of the device making a phonecall. they couldn't acquire the chunk identifier which is something they acquire under the verizon order here but you are correct that they would still have the broad interpretation of relevance available to them and that is their argument on the government's theory they could use any one use any one of the militants traded subpoena statute including the national statute to require all of these records in bulk and notable is the fact that none of those other statutes includes the sorts of protections the

government relies on an section 215. in other words they could rely on the national statute to acquire the same records in bulk without minimization procedures they point to a saving the collection from validation. without limitations that impose. >> maybe they will see that unconstitutional because it's only those minimization type or seizures in the court order procedures and so on in section 215 in your constitutional argument and it would be interesting to hear what they say about that. >> there is one other argument i will quickly mention under a statutory argument which is the grid of our statutory claim before proceeding with the constitution and that argument is that the core problem with the government's theory of section 215 is that it labels everything relevant on the

premise that some tiny portion of everything -- >> i don't mean to interrupt your statement of that great i think we know what that argument is. it reminds me of justice doer who said everything is classified, nothing is classified but everything is relevant than relevance simply drops out and doesn't exist. but a more technical question i guess is well the statute says that the government can apply an order requiring production of any tangible things etc.. the question of relevance doesn't come there in terms of the organization. it comes later when it requires that the application to the fisa court include a statement of facts showing there are

reasonable grounds to believe the tangible things are relevant to an authorized investigation. it do i have that right so far? and i'm wondering it would be much easier for me but the authorization said an order requiring the production of relevant tangible things rather than putting it down later in the papers through the fisa court. the reason i find this troubling or confusing is it is after all the administrative procedure act and presumably the administrative receipt or act, what we are talking about is the fbi and the nsa and i'm wondering whether by putting this down the question of relevance down in terms of what must be shown to the fisa court

we are not being asked not to review what the fbi and the nsa did but that they are being asked to review what the fisa court did and the fisa court is certainly not an agency under the aca. now i don't know what the question makes sense but i wonder when you bring in relevance and i understand everything that is relevant is very troublesome at least but if we say that is wrong that everything is relevant is wrong in the fisa court is wrong by saying that everything was irrelevant irrelevant was fined r. we been reviewing what an administrative agency has done before reviewing what the fisa court has done and is the letter have the power and is certainly

up to the aca. do we have the power to review what the fisa court has done? >> i think the quick answer is where acting for the former and not the latter but even in the latter i think it would be appropriate. i will note there are any number of surveillance statutes that are structured in that way that provide authority at the outset to set set up the limitations. i don't think that's a novel that section 215. it's the same for example and section 81a under fisa and the general grant of authority at of a all said and i know your honor is familiar with section 772. but -- >> we are not as familiar as we should have been. >> to get to your precise

question we are challenging agency conduct paid we are challenging the government's daily collection of our records. we are not asking this court to overturn and we are not asking this court to set aside the order. reacting for an injunction against the continued collection by the government. that is the deep wood in place without saying anything to fisk at all only with an instruction to the government. i think that is what our challenges and it's probably understood as a challenge under the apa. even if that were not true and if you characterize her challenge i don't think i would change matters. the government itself of the supreme court in opposing an original petition filed their that was challenging the verizon order said the appropriate avenue for belief in the district court case such as the one we are litigating and are in the pilon. the government itself noted that it's true additional court

action may not achieve precisely the same relief seide case mainly the fisk order that the plaintiffs would be entitled to receive an active remedy namely an injunction against illegal agency conduct. >> what happens if there are now two district courts which have come to opposite conclusions within a week and a half of each other. and they did it on the constitutional basis. supposing we were to refer and the d.c. circuit to do firstly you have one circuit that says it's unconstitutional. here's an injunction and the other one says we are certainly not going to give you an injunction. where does that leave the fbi?

have a lot to get records in d.c. and not in new york and where would that leave us? >> the government would seek a stay from the d.c. circuit if they were not successful in seeking that stay -- >> would have to be the supreme court they would deal with it. >> i think the supreme court likely would permit a stay pending its resolution. if i may have all turned to the constitutional. >> supposing we completely in order to avoid this sort of circumstance and we can get into this later but might we not say we agree with you but there's other litigation going on. we want the supreme court to take the ball and we are very much concerned. if we are wrong and somebody blows up a subway train does it

make sense for us to say okay here are the views and then wait until the d.c. circuit speaks so the supreme court has an opportunity to speak before actually making in order and injunction. >> i think it would be relevant and under the court's authority. we haven't taken a position on that and we would be happy to if and when that happens. >> that would be within our power to do. >> yes. i will now proceed to the constitution. our claim under the fourth amendment is quite straightforward. it's that the government bulk collection of our call records intrudes upon a reasonable expectation of privacy. the government primary defense of course is that this was decided in 1979 when the supreme court issued smith versus maryland. that's simply not the case.

>> say we agree or entertain the argument that quantity is quality here and the nature of the program is different than what was issued. isn't there still quite a bit to the government's argument that even in this context there is not really much of an expectation of privacy in these records? for example if you look at -- the whole thing for government could find out. the government could if it shows if someone looked into it from this metadata could determine for example it's likely that someone was hiv-positive or it's likely that someone has had an abortion. couldn't verizon find out those things? couldn't verizon go into the records that it has and make the

same kind of search and determine the same kind of privacy information and use it for purely commercial purposes not remotely as important to anyone as the reason the government seeks to use the data to do. just because they might be able to make money by selling a list of people that verizon claims have reasonably developed an unwanted pregnancy and they could sell that to abortion firms or an antiabortion group to send information to those people. >> i don't know but they could as a matter of our contractual relationship with verizon. i don't think their contract or bites for unregulated access to our call records. that is a matter of fact the only action that verizon has to tour records is likely computerized collection of those

records. it's a bit ironic that the government claims that the computerized collection of those wreckers extinguishes an expectation of privacy but it's computerized collection of those records -- >> do you know something about your contract with for ricin that i know about in mind? is there something in there that says they can't use the call records for anything but that? >> i don't know precisely what they can and can't do with the records. there are statutes that regulate what telecommunications companies can do with customers records. >> the communications at says they couldn't say to abortion providers are pro-life organizations here are all the phone records. search and see if you can find people who might be interested in your service. well anyway the point is verizon has all of this information

mentally has the computer capacity to if it chose. >> they indeed would at the computer capacity. i don't know whether they have the authority. i think it turns on the question of what the congressional statute is regulating. i forget the long form of the name but see pmi customer proprietary network information there are regulations that protect that information which includes our call records. i don't know the exact context but i don't think it turns on the question. i think this is another way of stating the third-party records question and i don't think that has been on an and off switch and the way you are suggesting. information is shared with the party and the person who is reflecting that information nonetheless is recognized to have an expectation of privacy.

all of our content phonecalls are routed through verizon communication. the con tax over calls are strongly protected by the fourth amendment and they are protected by federal statute. no one has ever suggested that verizon's ability to listen to the content of our communications extinguishes our expectation of privacy. the same is true of our e-mail. our e-mail is routinely stored on the servers of third parties. i think courts are just now beginning to grapple with that question in the sixth circuit in a case that despite the possibility that google might read your e-mail because the information is stored on the third-party server congress nonetheless has an expectation of privacy. >> but there are many irons in this case. one of them and maybe it makes

no legal constitution but it's a little strange that the ones through the guardian and others disclosed the existence of this program we no longer had a reasonable expectation of privacy. we were told we don't have any privacy and i would like you and expect you to respond to that. i thought about the question but i wish you would focus on smith versus maryland. talk to me about in this case the word reasonable is actually in the fourth amendment. talk to me about how we figure out the three of us figure out what's reasonable and what is unreasonable. >> and if i may or will it briefly address your first question. which is now escaping me.

the supreme court has recognized there's annulment of circularity expectations of privacy can be defined if congress so chooses through a statute that permits bulk collection but its guard against the possibility by analyzing a normal question which is whether people tend to be reasonable and expecting privacy. i think you see that question being addressed in cases like jones and cases like wright both of which recognize even though there's the capacity for greater intrusion into our personal privacy by companies and by the government giving digitization of information that doesn't fundamentally alter the relationship between the citizen of this country and the government. >> is the statutory issue at all relevant to the constitutional issue?

in other words, suppose this case came to us. as a constitutional question after congress had engaged in a full-scale debate as to whether to authorize explicitly exactly this program and they did explicitly authorize this program and i could further hypothesize they did it a few months before an election and after an election in which this was an issue. the same congressmen who voted for this were returned to office office. does that make any difference to our estimation of what is a reasonable expectation of privacy? >> i think it would be relevant but it cannot be -- the supreme court has noted again that the circularity of the catch test is not to be turned into a one-way ratchet for government intrusion into privacy.

>> i'm wondering also whether that means even if there were some bar tour considering the statutory question whether the program was authorized whether we found that this was a detour that was not authorized by any explicit legislation of congress and was in fact prohibited by some position of congress that is part of addressing whether this was constitutional or not that such an unauthorized executive branch would stand on that rent and shakier constitutional grounds and an intrusion on privacy. without necessarily concluding that it would be unreasonable the same program to operate if it had clear congressional

authorization. >> i suppose that's right although i don't think anything in our argument turns -- >> your constitutional argument leads to the conclusion that even if congress authorized the program is still unconstitutional. i realize that is your position. >> i see your suggestion. that could be an element of the reasonableness of the expectation of privacy. the fact that the executive intrusion has not been authorized by congress has not been one that liberated. >> there was a real debate in the democratic division of government that led to read out this program. >> that's right but i think of anything the current debate is ongoing suggest the congress is not comfortable and they president himself is now recognized bulk collection

creates an intolerable risk of abuse. i think that may think that may be a good segue and getting back to your question. i think it's always about the intrusiveness of the government against its rationale for doing so. i don't think the court needs to get to conducting that balance. the fact that the government search proceeds without individualized -- without satisfying a warrant or probable cause in the constitution is sufficient for us in the fourth amendment. >> smith has continuing married and i guess my first question were the numbers dialed and people didn't have an expectation of privacy. let's assume with regard to the program, is it your contention

that would be unconstitutional for them to collect just that information in bulk? >> just information issued? >> yes. >> it would be unconstitutional. technology directed at an individual suspected of a crime over three days. >> that is an issue because maybe to the extent of old that was being captured which is the number style are you saying that because the government is involved in other words for seven years that is unconstitutional? >> i think in 1979 the state of maryland has investigated not that the targeted use of of the pin registered but created a database that every phonecall

received in the government coffers think the supreme court understood that case stands for different proposition. i wager would have found that collection unconstitutional. so it's that program but we are challenging and i think it would be unconstitutional although it's more intrusive here for a number of different reasons. >> how do we go about looking at this stuff than worrying about it? how do we go about knowing without any fact-finding at all and i'm afraid i keep looking and wondering if we are having on camera proceedings but i'm wondering how without any fact-finding at all can we begin to know and figure out by district court or trial court presumably how can we begin to know whether this is reasonable

or not? how can i begin to know whether you know because of the way the world is today which is different than the way it was a week ago and different than the way it was a year ago when it started june the 13th. how can we without fact-finding come up with some reasonable determination? >> i don't think fact-finding is necessary. the party has reached the issue and even the president now believes that the government can accomplish serving this program without all collection. >> he sent his lawyers here to say -- >> i think he is awaiting a legislative solution. the president and interim i suppose -- >> for the most part the president thinks it's necessary to continue operating this

program and is constitutional to do so. he might or for some other way doing it but the government is here to say that they think this is presumably essential but at least a reasonable thing. >> our view is not that the president has conceded constitutionality of statutes but the government has conceded that there are alternative significantly less intrusive means. >> fair enough and one would hope that does surely sound like a rational way to proceed. it started out with that question but supposing because of the legislative -- as judge lynch spelled out the possibilities that politically won't fly and we are stuck with what we have got.

that is to say the whole country is stock and either we say this is unreasonable or it's a violation of the fourth amendment or we conclude it's reasonable under the circumstances given both the nature of the threat and what has to be done in the control of the threat read how do we do that? >> if i can make a few points. the first point is one i tried to make earlier which i don't think the court has to get to reasonable mentality. the government is entitled to a free floating reasonableness of the ken demonstrate that the warrant of operable cause of the amendment is -- and cannot for the simple reason that there is record evidence there is now a national consensus that government can accomplish in interest through individualized applications. >> that wouldn't ordinarily

require probable cause for a warrant. in other words this alternative procedure we are envisioning and the president is envisioning is verizon's record and i think if you had a reasonable suspicion that some reason the government wanted to look at some persons phone record they do that all the time by issuing a subpoena or perhaps a national security letter or something of that sort without trouble but cause and without warrant. and the argument is that is not fourth amendment either not fourth amendment smith bee maryland or if it is it's a reasonable one. >> that's right. if we are correct that is the fourth amendment then the question becomes for purposes of the central needs doctrine the first question becomes whether the government could accomplish

its interest or targeted demands. if i could it is not entitled to forgo the requirement of the constitution. they don't think he could target demands to engage in bulk collection but even the government has conceded that it could use targeted demand to accomplish in interest here. it uses a phone number to query its databases. they could use it to query -- >> i'm questioning isn't what you are saying reasonable in the sink for a? what they are doing now in terms of all collection is a possible alternative perhaps a reasonable thing to do or an unreasonable thing to do. i don't know why were the requirement comes into play. >> i suppose at least in this case the question of credibility seemed to collapse with the question of reasonableness but

under the special means off for the first question is whether dispensing with their requirement is practicable or not. here we don't think it is. even if it were practical for the government to acquire these records in an individualized fashion we would think the program is unreasonable for the simple reason that it's the most intrusive mean

i thank you for your argument and we do have time for her bottle. we will probably need more than two minutes at the rate we are going. >> thank you your honor. made please the court. stuart delery for the government. this case concerns an intelligence program considered and approved by all three branches of government. it didn't cause production to the security agency of bulk collected metadata pursuant to

orders the foreign intelligence surveillance court under provision of fisa that has been twice reauthorized without change after congress was briefed about this very program. >> you are starting off by saying it was approved by all three branches of government that you don't want us to address whether was authorized by one of them? >> if you're referring to the statutory inclusion argument yes we think that was a choice that congress made in specifying a very detailed provision for applications and approval of those applications by this fisc and a detailed review scheme following that allowing for challenge by providers and ultimately reviewed by the review court and ultimately to the supreme court as appropriate for the supreme court has locked in cases where government has established clear lease is supplied forms are limited party for judicial review that

provision that process is exhaustive. >> to address some very specific facts of the judicial review program fare that suggested it was re-double to assume that congress had included review by other parties. they set out a friday of factors and looked at those factors and concluded with respect to that program that conclusion was reasonable inference. i'm not sure that those factors come out the same way here. you are laying heavily on the generalization argue that any time congress authorizes judicial review by one person you must have intended to preclude judicial review at the best of any other person? >> respectfully your honor don't

think we are relying just on the generalization and obvious to the court the court as maker that inquiries need to be based on the structure of the statutory scheme at issue here. if you look at that structure what was alluded to in the first part of the argument there is no provision for challenge by third parties of these orders because as a matter of course the expectation was at that time the third parties including people other than recipients of the orders would not know about them. >> is that enough to assume that congress intended to per bid the review by such a third party if the third-party didn't find out? in other words i understand the idea that if we are asking that congress contemplate this kind of lawsuit do they implicitly authorize this kind of lawsuit that he could argument to say of course not, they imagined this sort of thing would happen because it could never happen.

but if there is a presumption that judicial review is available and the question is to congress pacific and 10 to prohibit judicial review to be of particular people and the answer is these people wouldn't be around that you lose? >> i've a couple of answers to that your honor. the first is listing the category of people who challenge the orders was a deliberate choice reflected in the legislative history. and i think other discussions but certainly the amendment rejected her pose district court challenges to 215 orders. the key tradition that was not addressed in the first part of the argument that section 1861 as part of 215 which has an order issued pursuant to the procedure by fisc shall remain in full effect. the that quote create pleasantly

modified or set aside pursuant to the procedures that are specified in this section. think that is the clear textual statement by congress that when these fisc orders issued they should be set aside only to the process that the court and the congress have specified there. and a preclusion here makes perfect sense given the structure of this section which provides for applications by the government to an article precourt established for the purpose of reviewing foreign intelligence applications. >> i guess one did so maybe we should ask them but the secret is who they were. we can assume so i was due. would they ever challenge one of these orders? they are immune to any claims by their customers that they violated any rights in response to one of these requests.

what do they have it in saying any thing? ..

>> >> the government's position appears to be if that's the way you want to look at it to test consistency with the constitution but not if it is consistent with section 215. >> it is a consequence of the supreme court doctrine as compared to what the court has said about what is required for a court to view congress for constitutional

claims it is a higher standard. >> is there any role to constitutional avoidance? you are asking us, requiring us to decide a question of constitutional law to decide with the government is precluded from doing this while on the other hand, to except the argument that says they have no constitutional privacy rights because surely the same argument, the same third party argument has the same relevance that applies to big records and credit cards. >> therefore are elements of

the same argument. >> but with the third-party argued - - argument? >> it is limited to the non content record date of the court made a point there are other cases like miller vs. miller dealing with financial records dealing with other types of information and. the key points under the relevance test under the statute the court has made clear the totality of the circumstances. >>, isn't it at least as relevant if you have a reasonable suspicion used his credit card last week to buy fertilizer to find added he called his gm on his

horizon cellphone? it is easy to find out his other colleagues clearly there is relevance in this sense that you talk about if you had him and wanted to get his precise credit-card records is there any question you could get that? so what and that says you could collect in advance essentially to make it easier and quicker to make the increase to find out what the guy is set to why doesn't apply to credit-card records? >> your honor is correct seeking that type of information to ask those questions of counterterrorism goes by law-enforcement every day

and those are important elements or a set of tools to pursue counterterrorism. here we talk about relevance and it is tied to the nature of the records collected to put that question aside to talk about information by telecommunications companies that they maintain for their own business purposes. >> look at the government's use of medical data the records in this case it makes clear that the purpose of the mobile collection is to allow for the use of the

analytic tools is the nature of the day dash that is interconnected and standardized to make connections and one that is not ordinary criminal investigations for who perpetrated the crime to be forward-looking of purpose is to detect a and disrupt future plots before an attack can be made. >> bugbane records seem to me it is that same sort of information. so with their bank records

there could be some limitations but couldn't day abrogate those records to see that methodology? >> that is a question that is relevant to with that type of collection is authorized but here it is important they had examined the type of data to establish it is collected into a database in the way the nsa does it. even if it is very valuable for law-enforcement may not have the same benefits from aggregation based on

standardized formats. so the answer here is not necessarily the same. >> is the idea that telephone records are for all providers so that of light they ink record their more susceptible to a collection? so we have this guy is phone-number. so who he talks to i take it you can serve a subpoena for all the people that he talks to to get that information.

in to be completely mistaken bet it is time consuming so have it all to do whatever you need to do to translate those horizon nor sprint records is fell 0.at that makes this official? isn't that obviously true? with bank records it is by subpoena or collect everything there is to know about everybody in one day get government cloud and then what you look at but i just don't understand the argument that makes them so

valuable that the same arguments don't apply to every record of every american everywhere. >> i would like to come back to the minimization which i do think is critical to understand to be appropriate but you are correct with your general description of the collection of the data. if that is vintage is it allows for standardization iran that is necessary i adducing phone records by their nature are standardized to allow for

rapid identification of connections. that is the purpose of the program. the purpose is to identify from a known person from a terrorist organization who that person is is in contact with. and those analytical tools to make those connections is at the core of this program. >> some of us have done that criminal investigation to know how it is to trace connections to be done with targeted subpoenas for

crabbing done it to tell you case by case but surely it is done by targeted subpoena to a least minimize the efficiency and convenience and speed. >> that is an element and other aspects reflected in the record is then indeed across carriers were people communicate with different carriers and an touche ago they historical repository because the government does not know which of the of data as a connection to a

known terrorist so only with you identify them. >> also if the phone company keeps all the records i think the judge was suggesting what the president suggested by legislation that problem could be solved to require to keep the information it indefinitely. going back to constitutional avoidance you are asking us to decide something that is extraordinary without requiring if it ever could be allowed under the constitution without addressing whether the congress has really thought about this to put aside the issue it is a little hard for me to imagines that

someone said you could have the order like the grand jury subpoena to get stuff that nobody ever of magic and before. but it is up a little hard to imagine but to make a showing of relevance means that all kinds of records he think they really are not relevant to the investigation right now. but they become relevant to a query at that point. why do we think the congress thought that using this language of 215? >> congress was briefed about this very program that it extended without change.

en lead details are reflected in the brief. it is the application. >> i wonder how valid the ratification argument is dealing with secret lot. but the notion is to deal with something that is public therefore to ratify again and pick and inflects public will. i am not sure ratification carries as much baggage as you want it to until june june 2013. >> the reason it does is because we're not just talking about a resumption in the federal reporter somewhere. but the judiciary intelligence committee was

briefed over time about the details the executive branch provided a briefing paper to be made available to all members and all senators that details that only the nature of the program but the relevance requirements had been that consistent with the supreme court's president under the fourth amendment. and the statement said day highlights were made in connection with the 2011 reauthorization they call attention to the legal interpretation of section 215 with the importance of power was used in connection

with this very program. finally the chairs made this material available offered briefings to all members and repeated the need for call it was being used. >> is getting later but i want to make sure understand your argument. and if it is appropriate. >> i argue that congress understood section 215 to cover the program that we talk about. >> also thank by extending section 215 no way what is going on.

>> so before anything to the of contrary would be a typical gratification with that analysis of that preclusion issue? that is from some traditional opinion. >> you are relying on the original history. but to reauthorize the statute in the program was instituted and the wit to the process