ties that are being justified on grounds of intelligence are being used in the course of ordinary criminal investigations. mr. vitka: to go into the fbi exemption, bob, i'm curious if you had thoughts on this. in your introduction, you said that transparency could be improved. it could be improved right now couldn't it? mr. litt: as i also said, there is a balance that has to be struck between transparency and impact on security. i think while -- and i am not an expert in the details of the transparency provisions -- but it is my understanding that some of the provisions were taken out and some of the existing provisions were strengthened. more detail was provided in more transparency in some areas. the fact is more you authorize release of information about specifically what we are doing the more you enable people to evade what we are doing and that

is the balance that has to be struck in any kind of legislation like this. mr. vitka: i would think the most informative part there, for policy makers, would be the number of americans who are affected, and i do not mean the numbers who are targeted, that it would indicate a pretty broad number that would not drive down to something that would compromise surveillance operations. bob, is that the case, or am i mistaken? mr. litt: it is difficult for me to answer that. there are other considerations that go into the issues of exactly what we can and cannot report beyond is it a good idea to report this or not and those are the kinds of things in many instances that i cannot talk about in this kind of a session. mr. vitka: would you agree it would be exculpatory for the community to say that 100,000

americans were affected versus 300 million americans? mr. litt: i am not comfortable with the word "exculpatory." people would be happier if there were smaller numbers than if there are larger numbers. mr. schwarz: i think it is important to distinguish between the transparency perspective in the existence of the broad program versus, which i think in general there should be more of, versus transparency with respect to how decisions are made on who to target, where i think that is something that there should not be transparency on. and to me, the founding error in the metadata program was that when president bush instituted it and president obama continued it, we did not have an open discussion about whether the

country should have such a program, and actually that seems to run through a little bit of yesterday's opinion by judge lynch. even dick cheney -- this is something i discovered writing this book and nobody had seen before -- when he wrote his dissent in the iran-contra matter, he said if you have a hard foreign policy or national security issue, a wise president first would not engage in excessive secrecy, and, second a wise president would have a full and open democratic discussion in which he would attempt to persuade the public of the need for validity of a broad program. mr. vitka: the concept

of delineating between the number of people affected or how targets are picked, versus the program itself, i think is valuable, and it gets to a question that i would like to hear from everybody on. there is a trust problem that now exists, for whatever series of reasons. an example of a concern that i have was revealed through a "usa today" piece that came out last month that revealed that the dea had been conducting a metadata collection program 10 years before 9/11. one of the concerns and maybe this is pessimism, maybe paranoia, depending on who it is or who you ask, is that stopping a program like the telephone metadata collection program that is ongoing under authority, how do we know it does not show up under another authority? it is a sincere question because there's no reason to hold the community to such a paranoid standard, but how do we

get to that point? ms. eoyang: i think this question is a real challenge because of the compartmentalization of the staff they do for information protection reasons, but you have >> to ask the question the right way, and you have to parse the answer in order to ask follow-up questions. when you ask, are you doing this under this authority or are you doing this, meaning the witness at the table in front of you that individual may only know a piece of it, and they may say, no, i do not. that does not mean it is lurking out there in other corners of the agencies, and some of the agencies are big and the witness may not know what is going on. so it is a real challenge, and one of the challenges for the intelligence committee is it is a relatively small staff, spread across a wide number of things.

you may only ber one deep on any agency. if that agency is billions of dollars, and has one person going through that entire agency to determine if there is a program hidden in a corner of it, it becomes a difficult challenge without access to the kinds of audit tools easily available in other places, and without the collection challenges you have -- it resembles a litigious environment in terms of questioning. it feels like opposing counsel deposition, where i'm going to ask you this question, now i will rephrase and ask it again. i think a lot of people in the community and the agencies come with that need to know deeply ingrained attitude, and so they are looking for ways not to

necessarily reveal everything. on the armed services side, what i found on a committee is when you ask questions, the answers were much more fulsome. they may say somebody else does that, but that is not my program, but let me talk to you about some other things. the answers were much broader on the armed services side than on the intelligence side. mr. vitka: does anybody else have any thoughts? mr. litt: a little dose of reality is useful here. remember the committees knew about these programs and about the bulk collection program and by virtue of our statutory requirement, if we do another program, they will know about that as well, whatever authority it is done under. in the last two years, the intelligence community has come to recognize the reality of leaks, and i think it would be a brave intelligence official who would say we're going to re-create a bulk collection program.

it is important to remember this program requires cooperation of telephone companies. it would be unlikely you would be able to secure the cooperation of telephone companies in a program that was re-creating this. the prospect that this program could be re-created under this authority, i mean, if you had a consipiracy of people willing to disregard all these outcomes anything is possible. it is not going to happen. ms. eoyang: i would say, though, i was on the committee at a particular point in time.

it is like "memento," you only know the moment you are in, with no context for before or after. and so it is probably true that post-snowden leaks that the committee has recognized that without a greater transparency the committees than they did at the time i was there. i was started in the bush administration, so a little more adversarial. the idea that members of congress have the confidence to say we know everything that is happening and there is nothing out there that if revealed they would be upset about, it is not something that at least when i was there they would be confident in saying. that was not just because of a suspicion, but because they had had examples of programs that they had not previously been briefed to what had been ongoing, and as a result, on the committee, we conducted an investigation into keeping the -- into what keeping the

committee fully and completely informed actually meant, because they -- and my present committee felt like they were not fully and completely informed. mr. schwarz: i have one thought. i think today the shelf life of secret programs is far shorter than it was during the cold war, where you would have some program secret for 30 years. i do not think that is ever going to happen again for a variety of reasons. a, is that true, and, b, if it is true, what implications does it have for how the government and congress should relate to each other? mr. litt: i think it is true and we are now at a position where everything that is undertaken by the intelligence community involves an assessment of what happens when this leaks out and are the benefits worth the risk. mr. toomey: if that is a change, it is a recent change. the dea program lasted 20 years

and only came to light last january. i would also say that to the extent we are talking here about section 215, section 702, and maybe fisa's provision, we are leaving aside a huge number of programs that operate under executive order 12333, and staff may know what level of oversight exists over those authorities, but some statements by the members of the intelligence committees have suggested that the committees were not fully informed about those programs is despite the fact that they had significant indications for the privacy of u.s. persons. and i think that is supported by recent reporting that the senate intelligence committee is working even now on compiling what is called an encyclopedia of executive order 12333 programs. maybe there has been an uptick in oversight of those types of

programs, but i do not think this historically and necessarily before 2013 that was the case. mr. vitka: what reform will convince you that that was not continuing? mr. toomey: now we are considering a different type of congressional oversight. one possibility would be to have congress involved in assessing in a way that fritz talked about the church committee and we are talking about today, and making some of the assessments around what should be disclosed to the public, what types of high-level description of the authorities the government wants to use can be usefully disclosed to the public and to the extent that the intelligence agencies want new authority and to the extent that the debate around usa freedom is whether we are confining the types of requests made to targeted grand jury like

requests or usa freedom is designed to open up the door to data mining of americans' information, that is the type of debate that we believe should be happening in the public sphere and that the opinion yesterday suggested should be happening in the public sphere. mr. vitka: could you briefly run through what was happening yesterday? mr. toomey: yesterday it was decided aclu vs. clapper. the challenge to the 215 bulk phone collection program. the case was decided on statutory grounds. the court concluded the plaintiffs had standing to sue that their statutory claims were not precluded, and that the bulk collection of phone records was not consistent with the authority that congress granted under section 215 when it passed

that law or when it reformed 1861 in 2001. mr. vitka: the collection is ongoing? mr. toomey: it was remanded to the district court for orderly resolution of what happens next in the case. mr. vitka: bob, i have a jurisdictional question that i do not know the answer to. the court of appeals for the second circuit, they say that this is unlawful. they have the opportunity to appeal at the supreme court. the fisa court of review is also an appeals court. does fisc have to listen to this if it stands? mr. litt: i'm not the right person to ask that. i think the answer is, no, i do not think the court of appeals has direct authority over the fisa court. it is something they would take

in account, but nothing that is binding upon them. mr. vitka: does that change given that the harms that the second circuit acknowledged are felt in that jurisdiction? mr. litt: again, i'm not a n expert in appellate jurisdiction. i do not think that is relevant to the question whether the second circuit has binding authority over a court that is not within the second circuit. i do not know, patrick, if you have a different view on that -- ms. eoyang: but the injunction would be. mr. litt: it would be binding on the persons who receive -- mr. toomey: the defendants are the agency officials, and the injunction would be directed at

those officials. mr. litt: but there is no injection. i think the court made clear that was a deliberate decision on their part, not to issue an injunction, to play this out over the political process. mr. vitka: this touches usa freedom. nobody knows what is going to happen with it. in the event there is not legislation that changes the recording requirements, would you expect to maintain this same level of transparency you have now, with potential to increase it? mr. litt: yes, and i expect we would continue to do that. mr. vitka: fritz, in your book you have a number of harsh words for judicial subservience -- to quote, "the courts are again undermining democracy.

they undermine democracy by discounting the relationship between american democracy and citizens' access to information about what the government is doing." is this case a turning point? mr. schwarz: this is a court being more aggressive where courts have not been. the judge you clerked for, potter stewart, back in the 1970's expressed the powerful arguments worrying about too much secrecy. in the mink case, where the supreme court held courts could not look at foia documents, but should amend the statute, which the congress did, potter stewart said the secrecy system leads to cynical, myopic, and even corrupt decisions. and then in the pentagon papers case -- i'm picking on you because you clerked for him -- complimenting you because you

clerked for him -- in the pentagon papers case, potter stewart said if everything is >> classified, then nothing is really classified. the courts are pretty open to challenges the government under foia and in some other areas and then they started just automatically deciding in favor of the government over the last 15 years, at least. i think they are afraid. they are afraid to could be wrong, and they are afraid to do what the courts often do and deal with subjects they are not experts in. i think the courts themselves say this. the several respected judges say we roll over in cases where the government -- foia case and

a state secrets case with the government raises a defense or in the foia case tries to deny information. maybe this is an era of courts being more willing to stand out, but climate makes a difference and they are reacting to how the public and the congress reacted to snowden, and they are saying maybe it is not quite so scary as we thought to go against the government. mr. vitka: i want to move on because of the time, but i thought you might have the best view as to how this ruling influences the politics of this, the congressional will. ms. eoyang: i think the second circuit put this back in congress' lap and say congress did not authorize this under 215 and if they want to be explicit about that, they need to ask.

they made note of the timeline. their analysis of the 215 program that suggests they would not look kindly upon it the way it is currently constructed. i think there is politics in this. in the house you would not get a clean reauthorization of the program through, so the real question for senator mcconnell do you take the legislation or do you let the program expire? mr. vitka: i want to highlight the first time i read about this was a reuters report, and it detailed and i will ask patrick to explain it and bob to comment, but to present the severe dissonance that exists in terms of what this is.

nancy described it as phoning up investigations and said she'd never heard it anything like it. and senior dea officials called it decades old, a bedrock concept. and nancy was a judge, by the way. patrick? mr. toomey: to describe what we see in some of the criminal cases we litigate and articles described, and articles have expounded on especially to the dea's program and recent disclosure of bulk collection of phone calls in and out of the u.s., parallel construction is an effort to construct a parallel source for certain evidence in investigations. it often occurs in certain senses. where we see it or believe it

happened, where investigators obtain information using one authority, which is potentially controversial or novel or legally untested in the court, and they rely on that authority to obtain information. investigations proceed with a benefit, and on the base of the information, and they subsequently obtained the same information using a more traditional law enforcement technique, like a rule 41 search warrant or subpoena for billing records. one example would be relying on the hemisphere program or even the 215 bulk collection phone records program to identify a person via their phone records. building an investigation, using that information, and then using a subpoena targeted at that now known person to obtain the same phone records, and when you end up in court, at the point of a prosecution, telling the defense only that the records were obtained via the second

method, via the traditional subpoena that does not raise eyebrows, and never disclosing the fact that agents were tipped off or investigators relied on information passed by intelligence agencies that was obtained through fisa, executive order 12333, 215, or one of these more exotic authorities. in our view and in the view of many of the defense lawyers and even former judges, this is a violation of the rules and the constitutional rules that entitled defendants to seek to have an opportunity to suppress the fruit of the poisonous tree, to argue before a court that the surveillance was unlawful and that the government's evidence is derived from that surveillance. mr. litt: if nancy says she had

never seen anything like this, she is being disingenuous. if you take references to 215 out and substitute for them confidential informant, this is something that has existed for decades. the government does not have to disclose the identity of a confidential informant provided that tip that started an investigation. the relevant factor in terms of discovering opportunity is, is the evidence being used at the trial against the defendant the fruit of other activities? and there is a well-developed jurisprudence about what is and what does and does not constitute the fruit of the poisonous tree, and includes concepts like independent source, and this has long been the law. it is no different in the context of these programs. the fact that a government agent was alerted to the existence of the defendant by a particular source does not necessarily give the defendant the right to

suppress that basis unless the evidence was derived under standard fruit of the poisonous tree rules from that -- tip. mr. vitka: do those rules apply in the context of bulk collection? mr. litt: why wouldn't they? why should they be different? mr. toomey: i would add two things, and say i strongly disagree that the identity of a confidential informant, which it is true, there are cases that talk about whether a defendant through a balancing test are entitled to get the name of the details about the -- mr. litt: or the existence of the informant's tip? i was a prosecutor for six years. mr. vitka: does the judge know in that context? mr. litt: sometimes the judge knows and sometimes not. mr. toomey: sometimes

prosecutors are deciding for themselves what is derived. that decision is never put before a court, never obviously put before the defendant, and the government has an interest in reaching a determination and from what we are seeing in the dea disclosures, structuring its investigations and the trail of what is recorded in agents' notes, reports, and court applications to suggest that in fact those sources were not relied upon when they were. and that is problematic. the government has an interest in making the chain from point a to point b as attenuated as possible to avoid court review of these programs, and we have seen not least in the context of 702 that the government has used an extremely narrow definition that qualifies of derived evidence. mr. vitka: to bring us to the oversight perspective, but

mika, did you ever hear about this? should you have? ms. eoyang: i would not have on the question of parallel construction, how information is used in a court case, the intelligence committee predominantly is concerned about how programs work and how they are used in the national security context. for a very long time that was the traditional espionage. there's a lot of ground to cover. the idea you would figure out how particular pieces of information be used by agencies not under the jurisdiction of the committee is not something you would normally look at. this is also true when you talk about these old dea programs. there are two things working. one is the "memento" problem. while the dea might have briefed the committee at the time the

program was initiated, members of congress and staff turn over, so over time you lose that institutional knowledge and members of congress who come in , a new congress will say i had no idea even the committee might have been briefed a few months before that. and the second is that the intelligence committee is more focused on national security agencies and not a law enforcement agency. we might not have spent as much time looking at what the dea was up to, assuming that was covered by people focused on other kinds of oversight. mr. vitka: bob, it sounds like there's at least one path here where the information is collected and analyzed. if an american turns out to be a defendant, the decision about whether or not the evidence can be admitted is not reviewed by judge, not reviewed by -- perhaps by judiciary, but other entities that was just discussed.

at what point is there oversight? mr. litt: it is routine in all criminal cases that decision about what evidence is turned over the defendant are made by the prosecution. that is the way the system operates. it is the case that when intelligence surveillance authorities are involved there tends to be more disclosure to the judge of the existence of those on a classified basis than there is in non-surveillance areas. fundamentally, this is the way the criminal justice system operates. the prosecution has a large file. it looks at rule 16 and determines what is disclosed to the defendant. mr. toomey: in terms of

illustrating how deep the practice goes and what it keeps defendants and courts from considering, the dea program described in the "usa today" story is a good illustration. that is a program that has been around or was around for 20 years. it is a program that agents interviewed said they consulted virtually every day. yet that program did not come to light in a criminal prosecution until 2015, until january of this year. it is a program that is used that widely, and i believe that program is not even classified is kept from defendants in such a wide range of cases, there is a need to reevaluate how parallel construction is used, and understand the legal rationale that underlies it within the justice department and how these government

agencies are making unilateral determinations about what is derived from what. mr. vitka: i think we have to wrap up now, as much as i would like to keep discussing this. there was one last thing. this showed up yesterday. senator burr was voicing a serious and lengthy defense of the section 215 metadata collection program. he said -- and i do not know if there has been time to clarify -- but in the statement he said that 215 provides for the collection of all phone call records and i.p. addresses. i do not know exactly if he misspoke or something else, and so i am not going to propose to bob something about whether or not this is ongoing because i suspect that your answer be will

you cannot answer, but i want to know what the law is. mr. litt: we have been clear about what that 215 program is. it is a telephone metadata program. mr. vitka: could 215 be authorized, be used to authorize internet data? mr. litt: probably not. thisere is some significance to the fact tahthat ist wasn't. it is not public knowledge that they instituted an internet metadata program that used different authorities. i think there was a reason for that. mr. vitka: i think that is fair. fritz, i just want to give one more chance for you to comment. parallel construction conversation, detailed, but what is striking is there such a profound gap between what is understood as legal or illegal. does that bring anything up for you?

mr. schwarz: i believe the nsa had in addition to this program of picking up every telegram they had, they had a watch list program, and how people got on that and what happened to the data that was collected, i have the vague memory that two attorney generals looked at that and said they did not think the way the information was getting from the nsa to prosecutors was appropriate, and he tried to put an end to nsa providing the information from the watch list to prosecutors. what theory they had, i do not remember, but if i were looking for history, one was richardson, and there was another attorney general who said we do not like the way in which nsa information is getting to prosecutors.

mr. vitka: with that, i will stop the conversation portion of this and move on to questions and answers. if that is ready -- and i know that dan has a question, and i want to give him time, but if you have questions, raise your hand and matt will come around and provide you a microphone. >> i work at the sunlight foundation. thanks for joining us today. mika, you talk about the memento issue with congressional oversight. is there inadequate record-keeping around some of these things to make it hard to track over congresses? i would like to hear more about that. ms. eoyang: i do not know if that problem has been fixed. we had transitioned between spaces, and the challenge of

finding congress' own legislative history, even the classified history so you could look at what previous congresses had done, going back for the house -- was quite difficult which reinforces the memento problem. try to go back and find information that would not be in executive branch control, but hearing records, internal documents prepared by the committee, having classified annexes, not having that history on site and readily available made it more difficult for members to be able to do historical comparisons. mr. litt: one of the answers to that problem, which is a real problem, is the existence of the full-time professional staff and permanent staff of the committee and it is a disadvantage to have

staff members accompany each member, because every time you have rotation on the committee your staff turns over. these committees have people who have been staffers for many years and have the institutional knowledge that can help them with this. ms. eoyang: they have both professional staff and the person who will help an individual member through. mr. litt: i know that leadership does not give them enough resources. ms. eoyang: they are terribly under resourced. mr. vitka: i will quote you on that. >> bob, a question for you. i wrote earlier this week about how the nsa computers can and do extract text from voice, and is a pretty transformative technology. it makes it easier to search phone conversations in bulk. the public will not know about this, but for the snowden archives. how could we possibly have debate implications and establish limits for technologies like this, or is it none of our business?

has congress been briefed on this? have they weighed in on this? mr. litt: that is example of what is wrong with a lot of media coverage, and even edward snowden said he thinks a lot of the press reporting has gone too far. that story made absolutely no distinction between technical capabilities and legal authorities. there are all sorts of technical capabilities that exist. i am not commenting on the existence or nonexistence of any such authority. the question is when are they used and what are the legal authorities under which they are used. that is something that a lot of the press reporting completely ignores, including that story you wrote. [indiscernible] mr. litt: you know what the legal authorities are. you know the authorities under which nsa can collect. it's not use any technical capability to do things that it is not allowed otherwise to do.

mr. vitka: anyone else with a question? >> thanks for all the panelists coming out today. really appreciate it. like mieke, i'm former staff and i do not work on the committee myself, but i have worked for one of the members, who i think, bob, you knew i had interaction with. one of the things that he always complain about was the 20-questions problem. i think we have covered that a little bit, but the thing i really want to ask today, and this is maybe my 20-question moment, has the icig, either by itself or in concert with the other agency i.g.'s conducted a

comprehensive look at all of the surveillance programs and activities carried out under these authorities that you have discussed, whether patriot act fisa, whether 12333? mr. litt: the answer is no. other outside bodies have been doing this, president's review group and so on. two, the resource implications of that and the number of tasks icig gets from congress are such to make that impractical. so the icig -- there was a conference to look a number of years ago. we just released some governments that were declassified with a multi-i.g. look at earlier programs, and we have just released those. they're not been anything done in recent years. mr. vitka: i have a quick questions, and we have another one. fritz -- i do not know if most americans realize there's a secret court, if you will, in

america. is that appropriate? should america have a secret court? mr. schwarz: it is not so new, by the way. when you have search warrants granted in an ordinary criminal case, is done in effect by a secret court. and i think the existence of fisa among the public is fairly well known. a fair question is, shouldn't fisa do more to hear the other side, and i think they definitely should, and they would be well served. it would make them better. it would make them more believable if they did more to hear the other side in arguments and whether that is as counsel for a target, which is difficult to do because they cannot really

reveal that someone is a potential target, or it is a general amicus who comes in, but in a way that remark of mine i think shows where fisa has been in my opinion misused recently and where instead of it deciding particular cases, which courts have jurisdiction to decide cases and controversies and doing it in secret when you're deciding should someone's records be looked at, does not trouble me. but i think they were asked over the last years and they agreed to do tasks which really are not the proper role of the courts, making judgments sort of on administrative issues. mr. vitka: what about when they reach issues of law, to put it properly? the definition of relevance, which is in context? mr. schwarz: it depends how it comes up.

they should not sit around, as the second circuit in the case deciding what relevance means . i do not think they should talk about abstractly what is relevant. i think to do that without an adversarial presentation is inappropriate and far more likely to have them take -- make mistakes. so they would be better off in having a more adversarial process in any matter which is beyond a should john jones' records be looked at? ms. eoyang: people talk about special advocates, but that is a person who is making arguments hypothetically in the abstract. what about the possibility that someone who was served with an order from the fisc could have standing to challenge that order, the adversarialness?

mr. scharz: that is true now. mr. litt: what the usa freedom act provides is the ability for the creation of a panel of cleared lawyers who the fisa court could appoint that presents a substantial issue of law or policy to come in and make an independent presentation that is not now made. mr. schwarz: should the fisa court be deciding policy questions, as if they are little

branch of the legislature? mr. litt: that is not different from what courts do in other warrant situations. the judge has got to make that decision and the judge makes a decision in the abstract without an adversarial presentation. the difference here is that we are setting up a method because there is less other review of fisa court decisions than there is of warrant applications, we are setting up a process, and i think the administration indicated it supports this whereby when those kinds of issues are presented to the fisa court, there's an opportunity to bring someone else in to present a different view. mr. toomey: the distinction or one of the distinctions that fritz is talking about is the

difference between a particular rise to demand for a criminal suspect or a suspected foreign agent record and programatic review of the 215 program or minimization or targeting procedures that govern 702 surveillance. there is not a particular person who is the suspected foreign agent or is the target of that surveillance that ever comes before the fisc. the fisc is weighing in on whether the presents themselves, whether the government intends to apply the right for middle and when it goes out and decides how to target people, but not any application to a particular person. and that even former judges of the fisc have commented that change for the fisa court has been a significant one from where it was started in 1978 and where it is today. mr. litt: i think it is true. what we've done is we've taken a whole category of activity that generally speaking and throughout most of the world have no judicial supervision at all, and up until recently was considered an inherited -- inherant executive

function, and we brought the courts into the system. so actually, what it has done is it has increased judicial involvement in activities that previously had no judicial supervision whatsoever. mr. vitka: this is one of the ways where parallel constructions becomes one of the odd points, because the bob's discription of the fisc court does not translate into an adversarial setting where information has remain ed classified, does not end up for the defendants, or the existence of it does not end up before the defendant. i would add for the staffers in the room that the special amicus in the usa freedom act does not have access to privileged information, which would be great if that got fixed before it got enacted. mr. litt: what kind of information do you think the special advocate should have access to? mr. vitka: state secrets executive privilege. mr. litt: it is clear the amicus

will have access to classified information. i don't think the amicus will have access to the internal opinions back-and-forth in the executive branch. i do not think the amicus should have access to that. mr. vitka: that it shall have access to information that is privileged, which seems to be waiting for not yourself or anybody who is currently in office, but at some point it seems like there is wool to be pulled over their eyes. another question. >> i'm a frequent foia litigator, and i obtained documents that show that the department of defense is developing not just speech to text, but also speaker recognition technology. two parts to my question. the first is, if the government does not believe it has the legal authority or the intent to use that kind of technology, why spend taxpayer dollars on it?

it seems it would pair well with what the nsa is already doing. i do not think it is an accurate corollary to liken an informant to a government program like the nsa collection program. government program triggers certain fourth amendment protections that a private voluntary informant would not trigger, so that seems an inaccurate corollary. mr. litt: we disagree on that. on the first one, i am not saying the government is not using these technologies. i am saying they do not expand the authority of the government to do anything that it cannot legally do now. ms. eoyang: to be clear, there private sector entities that are developing these capabilities.

if you have used google translate, the fact that the government develops additional technology and spends money should not come as a surprise to anyone. the government will spend more and do it more slowly. but speech detection capability is not necessarily something that is that automatically pernicious if you are talking to google or siri. mr. vitka: but when a private company does it, it is a bid for revenue. when a government does it, it is presumably an expression of the will of the country. ms. eoyang: it depends. somebody who is driving a humvee down a road can talk to its navigation system without taking their hands off the wheel, that is a different reason for developing the technology than using it to do mass searching. that is an important question, where are these being used because there are benign reasons to develop some of these technologies as well.

>> this is a technology specifically being designed to be used in telephone communication collection. it is being designed to be able to detect speech, then turn it into text and do keyword searches and recognize who the speaker is, specifically for surveillance scenarios. mr. litt: tell me what you think is wrong with that. >> not necessarily that anything is wrong with it, but looking for protections in place so there's not further privacy violations. you can see how this would be paired with telephone communication collection capabilities the nsa already has. mr. litt: if nsa were to use that in ways that violated its authority, it would be a problem. if they use that in furtherance of their existing authorities and within those authorities, it is not a problem. the technology is not the problem. the legal authorities are.

>> i agree with you. technology is neutral. what we need are protections built around this technology and for that we need transparency. mr. vitka: i think the second circuit opinion reveals to us the critical issue of who makes that determination. this program, the metadata collection has been going on for many years. it was not until the leaks occurred that it ended up having standing to be challenged before a court of appeals. what is the alternative, if not transparency? frankly, an adversarial system that produces an independent decision on whether or not this is lawful. mr. litt: whether or not what is lawful? mr. vitka: the policy decision to develop technology -- mr. litt: there is nothing lawful or unlawful about a technique that converts speech to text. what is lawful or unlawful is what communication the nsa collect, and under what authority. that is what we have been much more transparent about in the past.

that is what is fully known to the intelligence committee, who are the authorized overseers. how it is that nsa is able to implement its lawful authority can frequently be the kind of thing that does in fact cause damage when it gets out there. i'm not specifically acknowledging or denying any particular capability. i'm only saying that the focus needs to be on what are the authorities the nsa is using and what are protections around the execution of those authorities? >> did you tell the fisa court we are doing this?

mr. litt;: tell them what? >> did you tell the court you were using speech to text and voice intercepts? mr. litt: i am not going to confirm or deny that that is true. the fisa court order specifically dictate what we can do and cannot do in conducting collection. you have seen those orders. you know what they say. we do what those orders authorize. if the orders authorize it, we are allowed to do it. if they don't, we are not. it doesn't matter whether we use these speech to text recognition tools or 800 monkeys at typewriters. >> so there is nothing in those orders about speech to text processing, so you are saying you don't use it? mr. litt: the orders speak for

themselves, and i'm not saying anything about speech to text processing. mr. vitka: i would point out one more thing. this highlights a distinction that exists when you have the opinion that we had. the question of whether or not an algorithm going through collected information counts as a search. that is a real question. and hypothetically speaking, i would be very interested. you may know about this as well. if searching against a database is a search under the second circuit, but not a search under fisc, what is speech to text? is that a search? is that counted as a search? ms. eoyang: the question on that is the particular communication you are looking at that you want to convert from speech to text. the question is, how did you pick that out of your haystack? that is the question that bob is trying to get at. what is that? is it that, if it was saying look, you have both collection

-- bulk collection of something and we are doing it on everything, that is a different question. if you are processing the entire haystack, versus processing select communications, that's the question about technology. you need to know, what were the criteria for that selection? we had this debate all the time. in order to find a needle in a haystack, first you have to find a haystack. people felt you needed a lower level of scrutiny about the formation of that haystack. but it's not like you were going back and saying, ok, what is the level of scrutiny on the selection? this is in the early days. things have evolved legally since then. there's a real question in the second circuit, at what level is there a search? at what level is there any effect? that is a question, if a country, it is not clear where people come down, the communications they are putting out there into the world.

a question about the third-party and metadata and the rest of that, i think different people might feel differently about it. but not until recently did we have a national conversation about it. mr. vitka: shouldn't the arbiter be something -- that looks like the court of appeals rather than the fisa court? ms. eoyang: it depends on the context in which you are asking the question. if you are talking about the 702 program, then no, because you have a challenge within 702, a built-in oversight structure. if it is something that is in a title 18 context, then probably yes. but i don't know, in the 12333 context, i don't know if you could do judicial oversight. it is a different context, depending on what communications you are talking about.

>> last question. >> i'm wondering if you can discuss, i know there is discussion of this in the book but attempts on the congressional oversight committee to get information declassified. it often seems that the tools of congress for doing that are limited. congress often does not try. what are the obstacles to try to get information declassified in congress? at least to request it? ms. eoyang: on the intelligence committee, i would say that the desire for declassification is lower because you are dealing with everything in a classified space anyway, so you are having those conversations in a protected environment. it is only when you are having the conversation externally that it is a challenge. for a long time before, we got through public debate starting

with the 702 debate, it was difficult to get the community to break down exactly what was classified on what level, so you could actually have a public debate, a classification guide to help members have a conversation where parts of it were classified and parts of it were unclassified, to describe that well. i think members of congress are hesitant, for a variety of reasons, to take unilateral action, which they could do under the speech and debate clause, or go to the committee to declassify things absent executive branch input, in part because they are so dependent on the executive branch for continued access to classified information, and that really is, i think, the nuclear option in terms of putting information out there. they are cognizant of the ways in which it could become very difficult if they reveal classified information in a way that could undermine security.

because they take their job to secure the nation seriously, they are hesitant to do things they feel might underline that. -- undermine that. mr. schwartz: congress has the power to declassify, but they have to go through a process. and it is not easy. some individual senator getting up and reading a classified document and saying it is protected under speech and debate, i think, is not a desirable way to go. but the committee can declassify. they don't have to wait for the president or wait for the cia. and i think they are a little too subservient. but if you don't have a unified position, you are not going to have the power to do it. we did it, sometimes. we did reveal some things that the executive branch didn't want us to. and we were right.

the shamrock program was one example. we were right to reveal those things. but we had a sort of unity. right now, it is going to be very difficult, like in the torture report, to go beyond where they were, we would not get a congressional vote or a leader's vote to allow it to the committee. there's two or three ways it could be done. they have the power. they should be a little more willing to at least consider doing it. but you cannot do it unless you have a very solid backing for the decision. ms. eoyang: this goes to a question that really addresses the quality of congressional oversight, the commitment of the leadership of the congressional committee involved. that varies from member to member. i worked for members who pushed very aggressively for agencies to declassify information,

personally getting involved in the conversation and pushing through the bureaucratic process that declassification might normally take. then there are other members who would prefer that nothing be declassified at all. the level of a member's commitment to having the debate in public versus having the debate behind closed doors, and a member's commitment to aggressive, skeptical oversight versus a more friendly relationship really will change the quality of the ways the committees interact with the agencies. they set expectations for the agencies, when you have a long time with one kind of oversight or another. they get used to that, and when change comes it is a tough adjustment. mr. vitka: we are firmly over time.

thank you to all the panelists and especially to bob. it is critically important to have the intelligence community from the inside represented here. thank you, again. thank you all for being here. [applause] [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you look at some of her intergroup this weekend and networks. this morning your life from greenville, south carolina the gop freedoms of it -- summit. and on mother's day, starting at new, eastern europe the rumor

first ladies, featuring the daughters of jackie kennedy, lady bird johnson, betty ford and laura bush. tonight at 10:00 p.m. eastern, on afterwards, author john krakauer talking about mozilla montana. in the first female four-star general talks about her life and career. this afternoon at 4:45 p.m. eastern, remembering the liberation of not concentration camps with an interview of kirk mine who was a teenager who escaped the german prescription of jews by coming to the united states. and he questioned hitler's personal driver. in 70 anniversary of the end of world war ii europe.

get our complete schedule at c-span.org. >> on newsmakers, michigan congressman senator sander levin talked about the efforts to stop the trade promotion authority bill from passing in the house. newsmakers, sunday at 10:00 p.m. eastern. >> sunday night on c-span schema day, former bloomberg news reporter kate andersen brower on the role of the white house or the eyes of the people who work there. >> who are the cichlids? >> they are an incredible family, nine members of the family the white house command interviewed james jeffrey who is

the only current part-time butler who addicted to interview. -- i got to interview. nine members of this family worked there, his uncles john and charles were the head butlers, and he told me they ran the white house. they brought him him when he was 17 years old during the eisenhower administration. he is still working there, 80 this cartel used to work in the kitchen and he was a skinny little guy. they gave him ice cream to each great. it gives a 19 with the eisenhower's were like. i want to pay tribute to these people. >> sunday night on q&a. >> attorney general loretta lynch has announced her department will conduct a new federal investigation into the baltimore police department. this follows the death of

freddie gray while in police custody. his death sparked protests and riots. this is just over 20 minutes. loretta lynch: good morning everyone. thank you all for being here. i'm joined by the head of the department's civil rights division and ron davis of the community oriented police office, or "cops." we have watched as baltimore has struggled with issues that face cities across our country today. we saw the tragic loss of a young man's life and a peaceful movement coalesced to explain the concern of a community. we have seen officers sustaining serious injuries during the

city's unfortunate foray into violence. we have watched it all through the prism of one of the most challenging issues of our time. the issue of police community relations. when i traveled to baltimore, i had the opportunity to see the significant work the city and police department had done with the cops office over the last six months through a collaborative reform process. despite progress being made, it was clear that recent events including the tragic in custody death of mr. freddie gray, had given rise to a serious erosion of public trust. i have been asked to augment our approach to the situation with a court enforcement model. i have spent the last few days with my team considering which of the department of justice's tools best meets the current needs of the baltimore police department and the broader baltimore community.

today, the department of justice is opening an investigation into whether the baltimore police department has engaged in a pattern or practice of violations of the constitution or federal law. this investigation will begin immediately and will focus on allegations that baltimore police department officers use excessive force, including deadly force, conduct unlawful searches, seizures, and arrests, and engage in discriminatory policing. the cops department will continue to work with them. some may ask, how does this differ from our current work? the answer is, rather than examining whether the police department violated good policies, we will now examine whether they violated the constitution and civil rights of the community. this approach has been welcomed by the baltimore city fraternal

order of police. i want to thank them for their support and partnership as we move forward. attorneys and investigators conducting the investigation and the police experts who will assist them will be engaging with community members and law-enforcement. we will examine policies practices, and available data. at the conclusion of our investigation, we will issue a report of our findings. if unconstitutional practices or policies are found, we will seek a court admissible order. we will continue to move forward to improve policing in baltimore even as the pattern and practice investigation is underway. our goal is to work with the community, public officials, and law enforcement alike to create a stronger, better baltimore. the department of justice civil rights division has conducted dozens of these investigations to date and we have seen from our work in jurisdictions across

the country that communities have gone through the process are experiencing improved policing practices and increased trust between the police and the community. in fact, i encourage other cities to study our past recommendations and see if they can be applied in their communities. ultimately, this process is meant to ensure that officers are being provided with the tools they need, including training, policy guidance, and equipment, to be more effective and partner with civilians to strengthen public safety. for many people across the country, the tragic death of freddie gray and the violence that did occur has come to personify the city, as if that alone was baltimore. earlier this week, i visited with members of the community as they picked up trash and cleared away debris. they are baltimore.

i visited with officials determined to aid the communities they love. they are baltimore. i visited with youth leaders who believe that there are brighter days ahead. they are baltimore. i also visited with law enforcement officers who had worked up to 16 days without a break. they were focused not on themselves but on protecting the people who live in their community. they too are baltimore. none of us have any illusions that reform is easy. the challenges we face and that baltimore faces now did not arise in a day and change will not come overnight. it will take time and sustained effort. the people i met in baltimore, from the protesters to the public officials, to the officers, including one who was injured, all said to me ultimately the same thing, i love my city and want to make it better.

that is why i am optimistic about this process and i am hopeful about the days and weeks to come. that is why i am confident that as a result of this investigation and hard work that is still ahead -- make no mistake, it is hard work -- all residents of the baltimore community, residents and law enforcement alike, will be able to create a stronger and safer and more united city together. thank you for your time and attention. at this time i would like to open it up for a few questions. reporter: the request came from the city. what have you heard or seen from residents of baltimore that leads you to believe that the ongoing justice review needs to be augmented? are the problems deeper than you initially understood? can you talk about why cops does not work? or is not sufficient?

loretta lynch: the process has helped numerous communities and police departments across the country. but for collaborative reform to ultimately be effective, we need the three-part base of support. police, elected officials, and community engagement. and the ability to have faith in the process. we have all seen events change in baltimore and become much more intense over a short period of time. the community's trust has been worse and has severed in terms of the relationship with the police department. we felt that was one factor. in viewing whether we could use it to make the changes that we need. also, as we look more to the issues facing the police department itself in terms of the needs it has and the issues residents were raising, they were more intense than when we

started the collaborative process. we thought the best thing to do was to conduct an investigation to see if these issues rose to the level of civil rights violations. and if so, have the best model in which to address them. in our view, a court enforced order. reporter: senator mikulski made reference to a fractured trust between police and communities around the country. i wonder, from your standpoint how serious that fracture is. loretta lynch: we have had a number of situations that have highlighted the fracture in various communities, in different parts of the country cities of all sizes, issues ranging from people being harmed or unfortunate deaths in custody. i think we see it when it occurs. i think the issue goes beyond just the interaction between the police and the community. we are talking about

generations, not of only mistrust, but generations of communities that feel separated from government overall. you are talking about situations where there is a flashpoint occurrence that coalesces years of frustration and anger. that is what i think you saw in baltimore when there was that unfortunate night of violence and you see it in other cities around country as well. you can't look at a city and protect what is going to happen. can't look at a city and analyze it and certainly we are not looking to do that. we hope that our work, through collaborative reform and investigation, other cities can look at their own environments and decide what issues they see and whether or not some of the work done in the past can be brought to bear and help as well. reporter: will the department release any findings the folks have found in the collaborative review? loretta lynch: the information

is going to be folded into the pattern of practice report. it usually ends in a report that is made public. we are now going to full that into the investigation and will not have the collaborative reform report. there will be a report at the end of the pattern of practice investigation that will draw on that. reporter: this violence took place just as you are coming into office. as you saw this unfold, what was your reaction? what did you think? loretta lynch: i watched it, as did most people, through the prism of my television screen. i've seen similar incidents across the country and my first reaction was profound sadness. it truly was. it was profound sadness for the loss of life, the erosion of trust, the sadness and despair the community was feeling, for

the frustration i know the police officers were feeling also as they tried to encourage peaceful protest but had to deal with violence. my first reaction was profound sadness. reporter: the fbi director and secretary of homeland security is having a conference with the nation's police to talk about the growing concern over isis social media. how much is the concern is that at how urgent is a concern -- how urgent of a concern is that for the doj? loretta lynch: i think social media is a tool we have seen be used in cases that resulted in recruitment, as a means of distributing information. it is part of the full canopy of things. i'm going to apologize for not knowing everyone's name right away. otherwise, i would not point to

you in this manner. reporter: the baltimore police department says that they did not know that -- how are you guys working to make sure that local officials are looped into the threat that you guys identify at the federal level? loretta lynch: when information is determined to be a threat to any police department, we provide them with as much as relation as they can. in the situation you saw, there is an individual underscore new before but had not been very active in the immediate past. the information provided was more limited than the garland police would have liked to seen. certainly, all efforts are made to provide them with information and they were tremendously helpful in the results of the case and the results of the shooting that occurred.

reporter: carrie johnson, npr. as you know, a lot of localities are looking to you and your department now to help heal the fractured trust between police and communities. that said, you only have so many resources to conduct these reviews and investigations. do you need more attorneys and investigators? do you need a law to be changed? loretta lynch: i was on the hill for my first information meeting. we always ask for increased resources to handle the cases we have and the ones we anticipate. to the larger issue raised by your question, which is communities looking for help and resources, the department of justice is here to help and we try to be a resource. reality is, we cannot litigate our way out of this problem and

and is not our intention to engage in a review of every police department. it is rather our goal and found hope that the work we have done will be a base for communities to look at and to build upon as they determine what issues exist in their communities. we now have a very solid body of reports, for collaborative reform and pattern of practice investigations. one of the things i most pleased about over recent years is that many of our investigations are begun very cooperatively in conjunction with law enforcement and elected officials. they reach to us for assistance. they are not in an adversarial mode. by and large, most of them have been under the environment of working very well with police and community. our hope is that other jurisdictions, cities large and small can look at these reports

and say, are these the issues i face? what does the justice department see that? what is my police department doing that might look like this or be a better model better behavior? one of the things we try to do through the cops process is pair police with their peers. our goal is to be the resource and guide, not the hand reaching into every police department. we truly believe that communities, cities, police departments, they know the city's best and know what the issues and problems are. we want to help them reach the best solutions. reporter: eric tucker, ap. much has been made about the

different racial dynamics when you talk about baltimore city versus ferguson. ferguson had with the department with a very few number of minorities. baltimore is different. to what extent are you anticipating the problems to be different? loretta lynch: i think that regardless of the ethnic or racial makeup of every city, every city is different. they all present different issues. policing is a challenging profession, no matter where you are. the issues facing baltimore certainly do -- some people express them in racial tones. people were expressing them to me as community leaders feeling pain.

community police feeling frustrated at not being able to protect their city. there was a commonality that crossed races, crossed groups. every city is different and i do not want to prejudge or put that particular prism on baltimore or any other city. reporter: senator mikulski said that grant money should be tied to training. is that something you are considering? loretta lynch: we have a wide range of grant programs. many are specifically for training purposes. many simply provide equipment and do other things. our approach has always been rather than conditioning getting a grant on a particular program, we work with the jurisdiction to really focus on the specific need they have and basically

give them access to the training they need. the training for every department is different. we are always considering ways to make the grant programs more efficient. reporter: what more should the federal government be doing to deal with isis using social media? what more should the federal government be doing on a proactive level? loretta lynch: at this point, i can say that we are certainly using all the tools available to us to determine how social media is being used. as always, we have to balance that with the right to free speech, with privacy rights. those are very important concerns. we have to balance that with making sure that what we do does not interfere with the free flow of information for law-abiding citizens, for example. we are focusing on that as an issue.

it is not a new issue. we have seen social media being used in a number of cases and it is an expansion of how the internet has been used for several years now. both in recruitment and radicalization. >> one more question. loretta lynch: several hands are up now. reporter: can you expect to people why they should not be concerned that the federal government was flying surveillance planes over baltimore during the protests? loretta lynch: someone came to me and said something about, where you flying drones over baltimore? i said, i don't have drones. it is not an uncommon practice for police helicopters to fly over and try to figure out where our people moving to or where violence might be breaking out

and provide information to the field, someone to officers on the ground providing surveillance reports as well. i do not think it was a new occurrence and you see it in a number of cities. it was for the purpose of finding out if there were pockets of violence and what can be done about that. you will have to be the last one. reporter: the other day, when the mayor was talking about the investigation, there was a 40% drop in excessive force complaints. is that an indication that things are getting better? loretta lynch: all the data that has been gathered will be factored into the investigation. it is premature to say what the data means. there are numbers that can look great, but if you are the person involved in an unfortunate incident, for you it feels like it is 100%.

we will look at all those issues and incidents and look at the larger issues of whether or not the police, as they work to stop, arrest, and detain people, how they implement their policies, the use and guidance they have already, that will factor into our investigation. it is premature right now to say how it will impact. thank you all. >> next, we will be taking your calls and comments, live on washington journal. then at 10:00 p.m., the south carolina freedom summit. senators ted cruz of texas and

marco rubio of florida. dr. ben carson and real estate developer donald trump. >> remarkable partnerships iconic women there stories and first ladies, the book. >> she did save the portrait of washington, which is one of the things that endeared her to the entire nation. >> whoever could find out where she was staying for what she was wearing, who she was seeing, that was going to help sell papers. >> she start running your radio station. and she did it. >> she exert enormous influence because she would move a mountain to make sure that her husband was protected. >> first ladies, now in book published by public affairs. looking inside the personal life of every first lady in american history based on original

interviews from c-span's first lady series. what about their lives ambitions, families, and unique partnerships with their presidential spouses. 45 haqqani american women, f illed the stories of fascinating women who survived the white house, sometimes at great personal cost. no available as a hardcover or an e-book through your favorite bookstore or online bookseller. >> this morning on washington journal, former new york city police mr. bernard kerik. then mark mazzetti about the u.s. drone program. adminnd the advanced placement

u.s. government test. washington journal is next. host: good morning. it is saturday, may 9 2015 today on c-span and c-span radio. we will be live from the th conservative gatheringg in south carolina. we are coming off the news that the justice department has launched a wide-ranging probe of the baltimore police department. i investigation will seek to determine if the department has a history of discrimination and could put the police force under scrutiny for years t