proliferation with the likes of china, libya, iran, and north korea. do you have any response to that? >> i have not seen the article you're referring to. . >> we will hear from former inspector generals. this is live from catholic university in washington, d.c. >> the day does not pass without reading the headlines accusing an individual of criminal behavior or at the very least,

ignoring commonly accepted norms of professional responsibility. this plays out across many areas of practice. it could involve corporate greed, questionable bank lending practices, or how sensitive intelligence this elicited by -- is elicited by the united states government. the question for us today is not to determine whether any individual has engaged in any illegal conduct. that is for the courts to decide on a case by case basis. however, we are here to focus on the legal, ethical, and world issues attorney advisers confront every day in law practice. what does it mean to practice in an ethnically response away? does the standard change depending on who's your employer is?

the basics of professional responsibility are the part of every region are a part of every law school curriculum throughout the united states. law students graduate knowing what is expected of them in such matters as confidential the confidentiality and privileged communications. but went the standards clash with the gray areas that real- time practice sometimes presents, how should ethical and moral insight informs a lawyer's decision about how to proceed? i am very proud that the catholic university law school and served as a conduit for the discussion we will have today on national security issues. i would like to take this moment to thank the american bar association's standing committee on law and national security for its cooperation in presenting today's program with us today. i would like to express special

appreciation and thanks to my colleague who is on 20 year career as an air force jag officer -- whose own 20-year career as an air force jet officer will contribute to the discussion today. before i turn things over to the professor, i want to invite you to stay tuned for our upcoming programs. the critical insights in the practice series will offer a program next month on the future of consumer finance regulation. we have two more planned for the spring of 2010, at innovative approaches to advance in corporate morality followed by philanthropy and the 21st century, it should all charities be created the same? we hope that you will join us for each of those programs.

on behalf of the catholic university of america, i want to thank you all for joining us. i will now turn it over to professor michael noon. >> first, i want to reaffirm the mildean mile's thank you toe committee. they have helped us tremendously. their national surveys have literally inspired a generation of catholic university law students to go into the field of national security law. i was reminded of that fact recently at the naval war college. i attended the program. one of the law students that attended years before who is now a catholic -- is professor is retiring. that was a blow, but we owe this all to them.

i think that justice lewis would be very proud of what he has accomplished. for those of you not familiar with the aba standing committee 's work, they have an excellent website will keep you informed of what they're doing. the geneva at center for the democratic control of armed forces was formed at the end of the cold war to help in securities sector reform for newly democratic countries. about half a dozen years ago, they began looking at best practices for legislative oversight of the intelligence services. they have published material on this field. this summer, wind mileshen dhens called me, i instantly thought of that. for those of you who are

interested and following up on issues of transparency and accountability overseas, that website is particularly useful. that is two things. the third thing is that i want to thank you, the audience, for being here. some of the students participate in my compared of law seminar. they are stationed around the room with cards and panens. if you have a question, please signal one of the students. write your question down on the card. the students will give them to me and then i will pass the collected cards to mr. hitz who will look for the import questions at the end of the speaking process. the other half of the audience

is associated with the aba standing committee. you are quite agree. we started to print affiliations on the name tags. we decided to respect your occupational and anonymity. there is lots of talk these days about partisanship and its corrosive effect on political discourse. in my 20 years on the committee, i have never seen disagreements on that basis. i have seen legitimate disagreements on policies about what is good for the country, but i have never seen the kind of behavior that is sometimes attributed to political discourse in the united states. when i said earlier that our students have been inspired, they have been inspired by the people who have participated in these 88 national security programs. i look forward to seeing more of them in public service and going in with that kind of an attitude. that leads me to the program for

tonight. it focuses on ethical and moral responsibility. i served for 20 years as a government lawyer. towards the end of my career, and was active and legislative affairs. some of them involved classified materials. i used to pray. maybe that is why i am at the catholic univ. of america. i used to. i would not be confronted by serious ethical issues. i was not. then i began to wonder if i was not smart enough to see them or if i was just lucky. when i thought about legislative oversight, a thought about how little i been able to read or study about these issues. then i began to think about how the congressional staffers have similar problems. the panelists tonight represent nearly a century's worth of

experience. 30 years times three does not sound as bad, but the effect is the same. mike sheehy, frederick hitz is another former cia ag. he will start talking about the presidential oversight statute regulates relations between the two branches. it sets the ground rules for lawyers representing the interests of the legislative and executive branches. britt will follow with an executive branch perspective. there will be 15 to 20 minutes each. that should lead time for questions if i stopped talking, so i will. -- that should leave enough time for questions i stopped talking

-- that should leave enough time for questions. >> i see a lot of familiar faces and the room. i know each of the gentleman to my right quite well. if they think they can get away with throwing a cream pie in my face, well, probably they can. i want to make a remark or two about the subject matter. i think it's fabulous that you're getting into this issue of ethical and moral responsibility as it affects lawyers. i am part of the dark ages of legal education. i believe the only specific legal ethics issue that my professors in three years of law school founded in to me was do not mix your money with that of a client. it has become a much bigger

subject now, as it should be. i think all of us believe in the designation of lawyers as officers of the court who are attorneys and counselors at law. we need to spend a little time thinking about the ethical bounds of the profession. the congressional oversight statute as it relates to an intelligence activities is really quite short. it has been amended on a couple of very important occasions. i think most significantly perhaps, in 1980, when the legislation that emerged from the church committee hearings began to run out of gas in light of the active position of the soviet union in afghanistan and

elsewhere in africa. the carter administration discovered that as much as it wanted to make human-rights a central issue, the soviets had other ideas. then you will remember, it became perfectly clear. i'm going to take the liberty of reading some of this language. although is ambiguous in a certain sense, it was not intended to be. let me start with the preamble. "to the extent consistent with all applicable authorities and duties including those conferred by the constitution upon the executive and legislative branches of the government and to the extent consistent with

due regard for the protection from unauthorized disclosure of classified information and information relating to intelligence sources and methods, the director of central intelligence, now the director of national intelligence and the director of the central intelligence agency, and the heads of all departments, agencies, and other entities involved in intelligence activities shall -- we are talking about the intelligence operatives now. it is not the president in this particular clause. "keep the select committees --" here is the key bit of information.

"fully and currently informed of all intelligence activities which are the responsibility of or engaged in by any department or agency of the u.s., including any significant anticipated intelligence activity." read, covert action. that is political action where the hand of the united states is intended not to show. it goes on to say that this is not an approval requirement. it is a disclosure requirement. foregoing provisions shall not require approval of intelligence work anticipated intelligence activity. here is the key that has often been argued over. "if the president determines it is essential to limit prior

notice to meet extraordinary circumstances affecting final interests of the united states, such notice shall be limited to the chairman and ranking members of the committees, the speaker and minority and majority leaders of the house and senate." that is the so-called gang of eight. i read that as speaking only to the requirement of prior notification. if we are talking about a matter that has to be notified to the intelligence committees, it has to come in time. we had a ground rule in our day of 72 hours. but that was not absolute graveyard. that is an important part of it seems as a backdrop to some of the arguments that have been

articulated in the last year or so about intelligence information. there is also a requirement under section 501-1 to furnish information or material requested by the congress and report in a timely fashion to the intelligence committees any illegal intelligence activity or significant intelligence failures. here is the part where it seems to me in declared a terms that the president is brought in. this is 501-b. president will fully inform the intelligence committees of intelligence operations in foreign countries other than activities intended solely for obtaining necessary intelligence. that is a provision intended

solely for obtaining necessary intelligence. "for which prior notice was not given and shall provide a statement of the reasons. " i think that underscores the fact that even if the intelligence is restricted to the gang of eight, at some point in the course of deliberations between the bodies, it has got to be turned over. it seems to me that with respect to a number of the arguments that we have been having in the last little while, the requirement on the central intelligence agency and the other intelligence agencies of keeping the congress fully and currently informed is absolute. this has a companion piece dealing with sensitive intelligence collection activities as opposed to covert action activities but with the same strength of argumentation.

i think that is the kind of table setting that i wanted to do for my colleagues as they discuss the executive branch and legislative branch applications of these particular authorities. it sets forth what i think we have to have as a backdrop. britt, let me turn this microphone over to you. >> what was that? [laughter] >> it is great to be here and particularly be up here with mike and fred and i have worked so closely over the years. i see many people here that i know and have worked with closely. i'm going to get around to talking about what i am supposed to talk about.

that is the ethical dilemmas that the oversight statute poses for lawyers in the executive branch. i thought it might make more sense if i gave you some background first. intelligence agencies have always had lawyers. but until the mid-1970s, they had relatively little to do with the agencies'operations. when i got into this in 1975 as a young attorney on the church committee staff, i was surprised to learn that the lawyers at cia and nsa had not been involved in the activities that we had been investigating. rather, they were being used for in-house legal work. they were being used to negotiate contracts, defended the agency if it were sued. all very necessary activities but not at the heart of what their respective agencies were actually doing.

the primary reason for this i came to realize was that at this point in time, there were virtually no rules governing intelligence activities. you might have the international treaties come into play from time to time. but for the most part, the only restraint that the agencies operated under were the prudence and common sense of the people running them and the policy- makers and administrations that they served. when that prudence and common sense went out the window, as it did in the time that we were looking at, the agencies got off track. this happened in the late 1960's and early 1970's when the intelligence committees turned their capabilities on political dissent in the united states. it happened a few years before

when the ca start building the capability to carry out political assassinations, intervening in the democratic elections in other countries, conducting experiments with psychedelic drugs on unwitting subjects here in this country. all manner of things had taken place in the past. when all of this came to light in the mid-1970s, one of the consequences was that people started writing rules. congress started writing rules. the executive branch started writing rules. in the years that followed, there were more and more rules piled on to what had been written in the 1970's. if you take a look at the compilation of laws and executive orders that mike's committee publishes from time to time, you'll be amazed at the

laws written in the last 30 years to govern intelligence activities. the promulgation of all these rules requiring lawyers to interpret the rules. the number of lawyers in the intelligence community grew dramatically after the mid 1970's. they became far more involved in the intelligence operations of their agencies. i think they played a critical role over the years in keeping those agencies within the rules. one of the rules that was written was the law that fred has talked about, the intelligence oversight act of 1980. it's spelled out the obligations of the intelligence agencies towards the two intelligence committees. as fred has noted, the heart of the obligations was that they had to keep the two intelligence committees currently informed, including any potentially "

anticipated" activities. they had to inform them not only of what they were doing but also what they planned to do. when you think about this, it is a rather curious thing for congress to do. most congressional committees, if they want information from a department or agency that they oversee, they just ask for it. they do not enact a statute that tells these departments and agencies that they have to cooperate. they just do. the intelligence committees were different. they saw a need for a statute establishing an affirmative obligation on behalf of the agencies that they oversaw because they operated in secret. there were not sure if they did not have these affirmative obligations that they would learn what the agencies were actually doing. there was intelligence oversight

for the first 28 years of the cia that was handled by small subcommittees of the appropriations committees on each side of the hill who had been largely oblivious to all of these weird activities that i mentioned earlier. it was clear that the oversight arrangements had to change. they did not know enough even to ask. that was really behind intelligence committees to begin with enacting a statute. fred has already mentioned some of the provisions. i will not go into all of that. there were special rules for covert action, for notifying the hell of covert action -- for notifying the hill of covert action. i will not repeat what you said. the rule was that there should be prior notice. if there was not prior notice of covert action, the president would give notice within a

timely fashion. the 1980 law also provided for -- that they could notify the so-called gang of eight instead of the full committee. under the original language, the gang of eight option was available for notice of both covert action and clandestine collection. in 1991, the statute was amended to make the gang of eight option available only for covert action, not for sensitive collection. that is an important thing to keep in mind as we go through this. we had all of the statutory language on the books in 1980. but i can tell you that no one knew exactly what it meant. no one knew exactly what it acquired the intelligence agencies to do, neither the committees nor the agencies.

surely it did not mean that everything they were doing or thinking of doing had to be reported to the committees. but where were the lines to be drawn? i can tell you that it took a lot of time for those lines to be established. it took years, in fact. when i left the senate intelligence committee staff, as a general counsel for about nine years, i thought in 1995 that we worked out the ground rules. sufficiently. i thought there was a mutual understanding between the agencies and committees in terms of what they had to report. it was a well-developed set of understandings, in my view at that time. obviously, each time an intelligence agency contemplated a new kind of collection activity, they had to consider whether it should be reported to the two intelligence committees. was it really a new activity?

was it just a new twist to something the committees had already been told about? had actually reached the point with an agency where a decision had been made to move forward with it or not? if so, was it significant? only significant activities had to be reported. the lawyers at the agencies were involved heavily in these issues of the years, in deciding whether something should be reported. but the ultimate decision rested with the agency head. i think it was appropriately so. if someone was going to decide that a new undertaking did not have to be reported to intelligence committees, it ought to be the agency head. if the committee's been found out about it and decided that decision was wrong and they should have been told, the agency head should be the one held accountable for that decision in the first place.

covert action, i thought, would be less problematic in terms of notice to the hill. there was hardly an elaborate system within the cia and the executive branch for developing, approving, and reporting these programs to the hill. after the president had approved of them were approved a significant change -- -- after the president had approved of them were approved significant changes, they would be reported to either the full committee or the gang of eight. i think we all recognize as lawyers that there was a possibility that a future president might decide not to notify the two committees of all, asserting his constitutional authority as commander in chief not to provide notice to the congress. but no one had done that since the iran contra scandal. it it seemed to me would be unlikely if they did it if only

that at some point, they would have to go to the committees for funding to keep the programs on going. but then you come to the attacks of 9/11. i was out of government by that point. virtually everything i know comes from the media. but what we do know is that after 9/11, intelligence agencies were asked to do a number of new things in terms of intelligence gathering and covert action. i'm going to mention a couple of them, the ones that have attracted the most public attention. the terrorist surveillance program that the nsa undertook that you are all familiar with involved the warrantless intercepted communications. people in the united states that were thought to be in touch with terrorists abroad. the second program that the cia established was the secret

prisons abroad there were going to be used for maintaining custody of terrorists and to establish the ground rules for interrogating those terrorists. finally, there is a program that came to light more recently the reportedly said the cia was authorized by the president to establish paramilitary teams to go after terrorist leaders. i do not want to get into discussion about these programs. i simply want to use them to suggest the kinds of issues and dilemmas that might have been posed for the lawyers of the intelligence agencies at the time these programs were being considered. put yourself in a place of a lawyer at one of the intelligence agencies involved.

i realize that most of the career of lawyers at these agencies work cut out of these programs. only a few were cleared into them. for the purposes of our discussion this afternoon, assumed that you are one of them. it seems to me that if you were a lawyer at nsa, you'd conclude to begin with that the terrorist surveillance program was a collection program. it was not a covert action. if you were a lawyer at the cia, you see the program to detain and interrogate terrorists as collection activity, not as a covert action. we're not trying to accomplish something in a foreign country. both programs were significant departures from what their respective agencies had been doing previously. as such, they would have clearly required notice to intelligence committees under the oversight statute.

once you are cleared into it, you're told that because of the sensitivity of the programs that the administration has decided to provide notice to the gang of eight instead of to the full committees for both of the programs. as a lawyer, you know the statute expressly limits the gang of eight option to convert action other than collection programs. you know that what is being proposed does not comport with what the practice has been under the statute. what do you do? what thoughts of running through your mind? first of all, you might wonder why they are doing it this way. these programs are sensitive, but they are no more sensitive than other programs the committee has been told about. if these programs are meant to be ongoing, which they were,

you're going to have to tell the congress at some point to get funding to keep from going -- to keep them going. you also might think he would need congressional buy- in. you might wonder if handling it this way is a mistake. but at least you're glad that they are providing some kind of notice to the congress. you are glad they will provide notice to the gang of eight at least. if you go back and read the statute, you'll notice that nothing seems to preclude the administration from using the gang of eight to notify collection activity. it is just not expressly provided for. what happens if the gang the checks to the procedure? what happens if one of them

demands the full committees be told? what will the gang of eight actually be told, you will probably wonder. is the use of the gang of the procedure going to be explained to them? what about the legal implications of the programs themselves? are you going to explain how the legal authority for the nsa program squares with the clear wording of the statute? are you going to explain to them how the cia programs are consistent with international law and treaty obligations? if the legal implications of the programs are not going to be explained to the gang of eight, does not the administration agency run the risk that down

the road they will say they did not understand what they were being told? will they be upset? will they tell the public the administration was playing games? if you earlier thinking things through, such things might occur to you. -- if you are a lawyer thinking things through, such things might occur to you. you might wonder about your obligations. you might wonder who to tell. take the paramilitary program to go after terrorists. the newspapers say that the president specifically directed the cia not to tell the intelligence committees of this authorization. i do not know whether that is true not. for purposes of our discussion, let's assume that it is true. let's assume that he did direct intelligence agencies not to

tell the committees at all. you are a career lawyer that has been brought into all this. what thoughts are running through your mind? i think that i would wonder, why are we doing this and why are we doing it this way? the committees are already aware that we're going after terrorist leaders. what is so different about this situation except that perhaps our own people will be put in harm's way? in that case, would not you want the committees to know about that in case something happens? you also know that the committees will find out at some point. when they do, they are going to be very upset. they are not going to agree that the president has constitutional authority as commander in chief to withhold notice from the intelligence committees. they will say that he has violated the law.

that is what you will hear. you know that there will be this confrontation and recriminations down the road. it will be a major distraction for your agency when it happens. your agency will be blamed. the funding may be cut. he may enact restrictions on your operations. -- they may enact restrictions on your operations. what do you do? water your obligations as a lawyer? -- what are your obligations as a lawyer? i do not think there's anything out there to tell you what you are supposed to do. there is no canon of ethics, no department of justice guidance. i think that lawyers the found themselves in the situation are pretty much on their own. i believe they have an obligation to raise our concerns

with the agency management. i think this is implied by the employment relationship if nothing else. i think it extends to not just giving legal advice but also to giving policy suffice. lawyers are hired by agencies not just for their legal expertise but also for their analytical skills and ability. they are often able to identify a problem that others cannot. i think they owe it to management to tell them what they think. the more difficult question is whether they have any obligation beyond this. what if they take their concerns to the agency management and management ignores what they are saying? what if the agency takes to put the white house and the white house ignores what they are proposing? what obligations, if any, do

they have bthen to quit, protest, tell the committees what is going on themselves? that will probably get them fired. it is a tough situation. as much as we would all like to see government employees take a principled position and stand up to people in authority, i think it is asking an awful lot of career intelligence lawyers to shoulder the burden, to give up years of possible service and possible pension when they retire to save their political bosses from themselves. i am not sure in the long run that principled resignations by career lawyers serve the public interest. if a career lawyer takes umbrage at something the president does

and quits, what has really been achieved? he is out of a job. the program is going to go ahead anyway when he is gone. the agency is going to be deprived of his thighs in the future. he will not be there the next time a dumb idea comes up for someone needs to be there. it has not really helped the agency or the oversight process. it seems to me that the people who ought to suffer for the decision are the people who made it, not the person who is trying to raise concerns about it with and that bureaucracy -- about it within the barack crossing. i realize people may differ on this issue. -- it seems to me the person what to suffer for the decision is the person who made it, not the person who's trying to raise concerns about within the

bureaucracy. i realize people may differ on this issue. >> i do not know who to thank from the aba standing committee. i will go to my longtime friend, suzanne spalding, and thank her. it is a delight to look out over the audience and see so many people but i have worked with over the years. john colingwood, george jameson. it feels very comfortable here. i appreciate the invitation. i learned early in my career as it pertained to the intelligence business how difficult it was to follow fred hitz and mikbritt

snider. one of them was making a point with me. i had 35 years of public service. fred was the only one who ever did that. i met brit when i was serving as associate staff member on the iran contra committee. britt had the same assignment for a senator. i had only been on the hill for about 10 years. i was still in awe of the senate staff. he was so wise. later, we worked together and he was always so gracious and his advice he never give you a hard time for being the new kid on the block. i remember arriving on the steps on april 1, 1990.

i always thought that was a moronic arrival date. 1990 was the first year in which an intelligence authorization bill was vetoed by the president. britt was so gracious not to blame that on my arrival at the house committee. i have always appreciated that as well. i wanted to say that i could not agree more with everything that fred and britt has said. instead of retracing those steps, i thought i would take a slightly different tack on this topic. as a counsel to the house intelligence committee, how did i see my roles and responsibilities? first of all, i believe it was the job of the council to ensure that the members had sufficient information on which to base their decisions and the committee action. there is a statutory requirement

on the intelligence committee to provide information to the committee. the committees have to trust that the information they're getting is all the agencies have to provide. realistically and practically, they have no way of determining otherwise. i would say it all other committees in congress have an ability to get behind what the agencies tell you. they are the possessors of the information because of its classified nature. that gives them a great deal of leverage. it is leveraged that i think was exercised more frequently to their detriment in the early days of their relationship with the intelligence committees then a came to be exercised later on.

-- than it came to be exercised later on. i think that was because there was a later recognition that the information passed to congress had a benefit to them. it not only served to fulfil the statutory requirement, but it gave the congress less of an ability later on to complain that something was happening that they did not know anything about. i think that over time, there developed -- 1976 and 1977 until now -- there developed an understanding that there was a mutually beneficial relationship to be nurtured by the passage of information. that was responsibility number one, to ensure that the members had sufficient information on which to base their decisions and the work of the committees.

responsibility #2 was to provide advice requested. congressional staff -- it should be obvious but sometimes it is paid more clips service -- congressional staff are appointed and not elected. they have a duty to raise concerns in much the same way that britt described in his hypothetical with respect to agency lawyers presented with difficult decisions. they have an ability to forcefully raised concerns. that is quite a bit different than carrying an agenda of their own. they must never lose sight of the fact that they are not charged with a decision-making responsibility.

that is a particular problem in instances of restrictive notification procedure. unfortunately, in my view, in some instances, that leads to a situation in which a staff member will have more information on a particular topic than any other member of the committee save the chairman and the ranking member. it was a situation that always left me uncomfortable personally. i did not think it was a good situation as it pertained to the ability of the other members of the committee to conduct their business and discharge their responsibilities. the third responsibility of a staff member was to ensure -- of the scousel -- was to make sure that it was drafted to

accurately reflect the opinion of the members and the agreement reached on a particular piece of legislation. in the house after the change in party control in 1985, there became a more clear distinction between staff based on parties. the charge to the staff was the same even after this distinction. that was to remember that you worked for the committee as an institution. then the chairman of the ranking member most responsible for your employment, and in the members on his or her side of the aisle. it was also important to remember it that the functioning of the committee was the responsibility of the majority

party. puerit would often be done in consultation with the minority. but it was a rite of the minority -- but it wasn't right -- but it was a right of the majority and jealously guarded. the committee and the senior leader, the number of people working for any committee who have legal training far exceeds the number who serve as committee counsels. i agree with the observation britt made with respect to the duty and responsibility is a branch council. i think it is easier to pinpoint the persons affected by that responsibility or charged with

it in the executive branch that might be on capitol hill. on the intelligence committee during my service, there were a relatively small number of people that you could point to as having a particular legal irresponsibility or who were particularly serving as lawyers in the legal capacity at any one time. i agree with the point made that it is important to distinguish between policy and the determination of policy and the strictly legal work that lawyers often do. i would like to spend a few minutes on the policy aspect of what confronts a lawyer of the intelligence committees. something can be legal and still not be right. legal is the first element in the determination of what is right .

i do not mean sullied morally and ethically correct but right as an idea. you want to determine whether a policy is legal or illegal. that is not as challenging as it might seem on its face. the people who bring these proposals forward in my experience never brought 14 that they claim to be illegal or unconstitutional. often when they brought a proposal for, they were armed with an assertion that it had been reviewed for legality. sometimes within their own agency oand that the department of justice as well.

the notion of a great contest of the question of legality was not the way things normally unfolded. i might say parenthetically that one of the unfortunate and reluctant physicians that the executive branch often took was that if they could indicate the policy had been vetted for legality by the department of justice in the last to seek the legal reasoning, you were not provided with it. i always thought that weas a mistake. i often thought that a lot of the controversies that were rooted in a question of legality could have been more easily

resolved have the underlying legal reasoning been provided. that is one of the reasons i was happy to note in both the house and senate versions of this year's authorization bills there is a specific requirement that the legal underpinning of notifications to the committee's the provided upon request. i recognize the administration has some qualms about those provisions in their entirety. it may not be focusing on the furnishing of the legal opinion part of it. i hope that can be resolved. i think a more certain way of sharing information upon request would very much benefit the process. as i said, what is right is a calculation it goes far beyond what is legal. it struck me that once the

council was able to check the legality box in his or her mental calculation -- i indicated i thought that was a fairly easy procedural matter. then the concerns had to go on to three or four other areas. among them was whether or not the policy was likely to achieve the goal. whether or not the accomplishment of the gold was worth the risks involved, whether the presidencedent established was a good one or at least not a bad one. and whether in the field of very poor choices, the proposal chosen was the best available. on those calculations coming back to where we started, for

those calculations to be done with any degree of comfort and confidence in the outcome, it would require a lot of information. that is why i always felt that if there was any question about whether or not the committee was getting what it needed in terms of information from the agencyies, then the resulting policy choices that the committee had a hand in fashioning with almost invariably be not as good as they would have otherwise been. with those thoughts, i thank you again for the invitation. i look forward to any questions. [applause] >> i have had an opportunity to look at all the questions. they are all legible.

>> i want to put the ball into play with something just said. as a career lawyer as opposed to an appointee, we all know the position taken by counsel that left his job who is now a lawyer at walmart. a lawyer may not be able to depend upon landing on his feet that well. it is not completely similar to the situation a lawyer in the intelligence community might face. there are a lot more of them than there used to be in the beginning. but there are not as many as there are in the judge advocate

general. i took enormous pride in and had a lot of admiration for the position taken by the jag. that is where i am currently teaching. it was how they reacted to the changes in the army field manual and the initial efforts to go beyond and use more enhanced interrogation techniques. it was resisted enormously. there was a lot of pride in the military uniform code of justice. i think that you should follow the law but you should also come back and say as an institution that we would be getting a great deal if we go off on this detail. is it possible to expand the field of understanding or misunderstanding about this and

gain some support that way? britt, i am sort of throwing that back at you if you would like to comment. >> as i said earlier, i think the career lawyers do owe an obligation to their agency to surface these concerns and what they can within their purview to influence the decision or changed the decision. my problem comes beyond that when they failed, what do they do? i recognize some people may disagree with that. you may think a principled resignation on the part of a career lawyer will send the kind of signal politically that nothing else will. but you are doing it at the cost of an individual. you may not want to take that. that is a pretty steep cost.

>> i do not disagree with that. a person always has within their judgment the decision about whether they can continue to work in a particular environment or whether the work they are being asked to do so abhorrent to them ethically or morally that they cannot. i think that people understand that. i would never quarrel with anyone who decided to do that. i think there is another thought to be considered. you outlined one earlier about whether or not their objections -- about whether or not there are objections to a policy on whether they should contribute to try to change the policy on the inside and trying to make sure that the policy and process that put in place is not repeated. i do not know that i quarrel with anyone's analysis on how

they would come down on either side of the question. >> let me raise a question from the floor. what is the ethical balance or where are the lines to be drawn for intelligence community attorneys in defending the position or interests of their agency when it conflicts with the interests of their own employees who have retained private counsel to pursue a claim? . .

>> i am one of those who, for 25 years, fought the classification stamp. i thought that it was used to broadly, too loosely. -- too broadly, too loosely. in this question, where there is an employee claim, the grievance that you can perhaps discover is particularly difficult. many of us have seen instances, especially in security clearance cases, where the agency says that you have not got a right to a position in the intelligence community, we will make the decision as to the qualifications. we are taking the position that

you are not qualified and that is the end of the argument. it is an entirely different question if you have years of service and you are going to be thrown out on the street. we have a number of questions, three of them as a matter of fact, on the issue of whistle- blowers. the protection of intelligence community whistle-blowers is before the congress. and the inspectors general adequately make findings to protect whistleblowers? or are protectors general to close agency management, thereby requiring some other regulators, such as the courts? that is one question. question no. 2, britt, you are on this one -- you are on this one.

what cultural impediments still exist to whistleblowing within the intelligence community? third, if whistle-blower protection is delegated by the congress to the national congress, is there a working model for them to team up with the inspector general to protect whistleblowers? i may be very dated i and my information, but i thought that the statute that passed was the one that required an employee to go first to the inspector general with the issue that was troubling to them, then after the inspector general had time to examine the equities, perhaps reserve the right. have i not been reading my paper

often enough to know a change to that? >> that is also my and standing. 1998, about 10 years ago -- that is also my understanding. 1998, about 10 years ago. >> [inaudible] >> the whistleblower, as a practical matter, can go to the committee. will he be punished for it? that is the issue. if you must follow the requirements of the statute, it is objecting yourself the possible punishment. this is the statute. i have to tell you, i objected to it when it was passed. i thought that it was totally unnecessary. when i worked on the senate

intelligence committee we had intelligence agency employees come to us all the time with complaints about going through their agency. they asked for confidentiality. you can comment on that to a point, but once you got into an investigation they would be identified. they would have the option of backing out at that point. once they were identified the committee would tell the agency involved that if you do anything to fire your employee you are doomed. we will take action. that protection in the system worked for me just fine. but congress, in its wisdom, on the intelligence committee decided that they needed a better intelligence procedure. rationally it did not make sense for the employees of

intelligence agencies to go on their own to the committee. imparting classified information. to me it was not necessary. addressing something that was not a problem. >> trying to remember 10 years back, i recall that there was a great deal of concern. without a more formalized, that is to say statutory process, people were not comparable with the process described by britt. i do not recall anyone either before or after the statute for the accident.

nonetheless, there was a strong feeling of community, that it needed to be formalized. >> kate has written up a follow- up question. what about protecting disclosures to the congress? as an alternative to resignation. in other words, you get it off of your chest and you do not have to walk the plank. >> you should not have to do that anyway. as you stated in your introduction, the committee is entitled to any information. by the law. protecting something, even though it is classified, to the committee with a complaint, it seems ok to me within that framework. >> a bit like taking over a

jurisdiction from an accused on the high seas. courts do not ask how they got there, they are tried in due process. >> the point that i was trying to make with respect to resignation was that it is your option. not only in instances that the committee and i know about, because they will find out. it is your option, what you are objecting to in your view is so wrong that you cannot continue to be employed by an agency that would condone it. i think that there are plenty of protection for someone who has a concern with the policy and wants the committee to be involved. i do not think that that is the

problem, or a big problem. i do not know what the problem is. >> what is the role of the agency's inspector general of congressional oversight committees, if any, to address complaints against agency counsel from within or inappropriate outside of the agency? is the relevant council the only venue? >> there is some relevance to that. >> i do not know of a case where that has happened. >> nor do i. >> i am not sure whether the inspector general would take him home -- take it home. >> their relationship with the general counsel, tenuous at best in some of these cases, it would

certainly be shattered by that. >> typically they are not looking at policy decisions made by management, not looking at legal decisions made by the agency. they are looking at violations of the ball, procedures, monitoring the books. they are not mounting cases the question policy. -- to question policy. >> can you discuss how considerations of executive authority, including a unitary executive theory, influenced the operation of the oversight laws? can they eviscerate it if used broadly? can it be or should it be the legitimate?

kennedy argued that the oversight laws can be largely ignored as unconstitutional in war making an affairs? what are the ethical implications for a lawyer who accepts it and makes the argument? to jump into it, that is crazy. that is the ambiguity in the discussion of this particular subject. those are conferred by the constitution, taking you right into branch on a tense --

taking you right into branch eccentricities. it may be divided by the voters. >> you might be right. i was involved in covert actions in 1991, we tried to resolve this issue and in the end we could not do it. the executive branch claimed that there might be times when the president might want to withhold notice from the committee entirely, from the congress entirely, citing authority as commander-in-chief. they do not believe that authority exists in the constitution.

there may be nothing that resulted. it can be asserted, and we do not think that there is such authority. as the person that ask a question said, it presents a problem where you have an administration that does not want to work with the congress and is looking for a way to avoid that. it has political consequences when it all comes out. it may just be decided at the ballot box. >> i think that the arguments, clearly, it could be made, and i am sure that there is one from the past administration. as a practical matter, both of

these intelligence activities are of more than two seconds in duration. they need money to operate. you cannot, despite the existence of various funding mechanisms, it -- you cannot operate for a long time without congress' getting more specific money to handle the operation. congress needs to be involved in on the details of the program, to some degree. no matter how comfortable you might be with the notion, it is a practical matter. it works. >> only in the rest of circumstances, war story, i was in charge of congressional affairs of the cia during the time of desert 1, the attempt to

rescue the hostages in iran. that was communicated to know what on the hill. i remember getting the call from norman, early in the morning there was a flash over the ap. he asked what i knew about this. i was able to accurately say, perhaps a bit drowsy, not a damn thing. it was something that everyone was graveyard on >> the congressional affairs representative, they always had to be notified. [laughter] >> those are all of our written questions. >> we did not pass to you the other kind. i will ask one question. it is always assumed that

lawyers from different branches act by an adversarial roles. that was not my experience when i was involved in the knee -- mixing hearings over the secret bombings in cambodia. we were always treated nicely by political opponents on the hill. talk about that aspect, how much of it is adversarial? >> i never found it to be adversarial except in the instances where there were genuinely held differences on policy. then it was not personal, it was a genuine debate on policy. as i said earlier, agency lawyers, regardless of who they represented, presented proposals. they were bright, patriotic, hard-working and the rest of it. i hope that they found us to be

the same way. the collective view was that at the end of the day we were trying to come up with a resolution to the problem that was in the best interest of not only our party is, as we represent them, but the country as a whole. i certainly never questioned that as the map -- motivation. >> i would say that my experience is largely the same, both in terms of working with committees on the hill and agencies in the white house. i do sense that things have changed since i left and that things have become more political and adversarial than they used to be. but not when i was there. >> would you not say that even in the national security area, where great pains were taken, especially in the oversight committees, to play down the

partisan nature of the matter, that that to some degree has been reversed? it has been lost in recent times? one hearas. and -- hears. also, i apologize for poking you in the chest. [laughter] >> i would be careful about ascribing to discussions of policy differences with too much of an error of being too partisan. certainly they take on a partisan flavor at times. i saw a number in my time. i do not think that i saw any for suit that was, at its root, partisan or had a partisan basis or defining characteristic.

both sides were advocating either the right thing to do or not the right thing, based on principles and values to which they ascribe. >> part of law school educational program requires students to be exposed to certain ethical considerations and discussions and so forth. students who are present here tonight, or who will be watching, will not only be earning credit, but they will be getting terrific in sight in trying to do the best for your country. thank you very much. [applause] [captioning performed by national captioning institute]

[captions copyright national cable satellite corp. 2009] >> last week, max baucus unveiled his son -- is changes to the system. tomorrow morning committee members will weigh in. live coverage beginning at 9:00

a.m. eastern here on c-span. >> tonight, using the internet to provide health care resources. chris schroeder on connecting consumers with information and support. "the communicators" on c-span 2. >> join "book tv" this weekend, we will be live with ken burns and your calls. "book tv" every weekend on c- span 2. >> challenges facing organized labor with the president of the afl-cio theory of this event was hosted by the american center for progress activation fun. it is about 40 minutes.

>> ♪ i won't back bell -- back down i know what is right i have not just one light ♪ >> thank you very much.

i am truly humbled by today. before anything, there is someone that i need the bank. someone that all of us need to thank. he has renewed our commitment to organizing. he has restored our voice in government. in the process he has rekindled the hopes of millions of american workers. he did something else. he reminded us that organized labor is not an institution, we are a movement. john, you have walked us through some of the toughest times. now, before long, you'll be able to walk kennedy the school, which will be a good thing. john, this movement and this nation will forever be in your

debt, forever. [applause] there are a lot of special people here today. but the most important are right over there. that is my family. all of you, stand up. [applause] you have always been the core of my life. my greatest joy in my shelter from the storm.

-- my greatest joy and my shelter from the storm. you have taught me family values. quite frankly, you have taught me what family is all about. i will never be able to thank you and of for always being there -- thank you enough for always being there. thank you. [applause] then there is my extended family. my brother, cecil roberts, and the men and women of the umw a. [applause] from the first day working in a coal mine, to my last day as an international president -- as international president, i have

always been in awe of the courage, compassion, and unbreakable solidarity of my umw brothers and sisters. i want you to know that just as you have always stood by me, i will always [choked up] [applause] of course, there are some other people that i would like to thank. quite frankly, i am looking at

them and listening to them. it is you. the men and women who bargained the contracts. he lead the organizing drives. you mobilize members to elect candidates and hold them accountable after they are elected. you do the heaviest lifting in the deepest banking. -- heaviest lifting and the deepest thinking. still, you get up the next morning and you do it again. it is easy for people who work in washington to fall into the trap of believing that maybe, just maybe, they are a cut above above everyone else. i want you to know, right now, that arlene, liz and i, we know better than that. we understand that we are not

the american labor movement, you are. the afl-cio does not belong to us, it belongs to everyone of you. we thank you for it. [applause] now, i am assuming that by now a lot of you have been able to make your way around pittsburgh. with that the g-20 summit coming next week, the local business community has been laying it on health little sick about the city's overwhelming transformation. for those of us that grew up in southwestern pennsylvania, we know that much of it is true. the other day i read something on a web site promoting the g-20 summit that really caught my eye. it was intended to be a brief description of this area's history. it said "the golden triangle has

drawn generations of people from around the world to form its diverse neighborhoods." now, that is true. but they left out the reason why people were drawn here. it was long before anyone ever talked about a golden triangle. there was another pittsburgh. it was a place where the whistle of a coal train pierced the night. it was a place with men and women like names -- men and women worked 12 hours days standing in the glow of molten steel. where black men worked in the coke ovens, during -- doing the dirtiest and most dangerous jobs of all. where women washed other

people's laundry and clean other people's homes, " other people's meals. anything just to have enough money so that their kids would not have to go to work. there was a coalition of italian, english, spanish, yiddish, and more. most of the times they could not understand a word of what the other was saying. but they all spoke the language of hope. hope for better lives, for good lives for themselves and their family. the chance to own a home. to give their kid something more, something better than they ever had. they also knew that there was only one way that they would be able to make that happen. it was not by pleading for it, it was not by begging for it,

and it was not even by praying for it. it was by joining together with their fellow workers and fighting for it. it was by mobilizing together, organizing together, standing tall and proud and union together. telling companies that in one strong voice that you might all of the iron, the coal, the banks, the newspapers, -- you might own the iron, the coal, the banks, the newspapers, the politicians, but you do not own me, my family, my union, and you never will. [applause]

it was organized labor, that is what bill of the middle class in this city, in this state, and across this country. today our message to america is that just as unions build the middle class once before, if you give us a chance we will help you build it one more time. [applause] now, you know that things have really changed since then. we have members facing down pirates in the ocean. corporate pirates at verizon.

members of the aft are working to rebuild school systems in st. louis and elsewhere. tradesmen and women who built this incredible convention center where we are holding our convention. even though the face of the american labor movement has changed, one thing has not. the surest, fastest, a cost- effective way to lift families into the middle class is with the strength that can only come with a union contract. brothers and sisters, that fundamental truth has not been more critical to the future of our country that it is right now.

today the middle class, the american middle class is being squeezed, being crushed. the mirage of prosperity through borrowed money has dissolved. we are left with the reality of a hollow economy and a broken financial system. the middle class people that once coved of living the american dream are today living in chaos. losing health care, losing pensions, losing our jobs, losing our patients. -- patience. i will tell you something, it was not organized labor calling the shots at bear stearns or lehman brothers. no one at aig ever picked up the

phone and ask for our advice. even though it was not the labor movement that got us into this mess, brothers and sisters, we are the people who are going to lead america out of this mess. [applause] but we can only do it if we joined them -- join together and seize the movement. we can only do it if we act now. if we provide the leadership that all working americans the man. today i am telling you that we will seize the moment. we will act. we will lead. by god and, we will win. -- by god, we will win.

they say that the american labor movement can turn the country around. together that is exactly what we are going to do. to do it, we need a new kind of labor movement. one that meets the needs of america in a changing economy. a labor movement that is not afraid of new ideas, understanding that the skeletal for the past is no strategy for the future. we need a union that makes sense to the next generation. young women and men, they are almost penniless. what happens when they enter the

job market? they are sap into the twilight world of the contingent economy. working as temps, contractors, on call labor. tellep-commuters -- tele- commuters, minute -- women and men walking a tightrope with low wages, no health care, forget about job security. many of them do not even know who they are. men and women need a strong voice. when they look at unions, sometimes they do not see themselves. they only see a grainy, faded picture from another time. that is not the way that it has to be. you see, the labor movement

cannot ask the next generation of workers to change the model. we have to change our approach to organizing and representation to better meet their needs. i promise you, we will. [applause] by the end of the first quarter of 2010, we will organize a summit of this new generation of workers. to discuss their struggles and craft an agenda that responds to their needs, not ours. [applause] what kind of labor movement do we need to become? a movement that is mobilized to

create the jobs that labor needs, and the future demands. we know that a $500 billion investment in a renewable energy economy can create 5 million new jobs. that is not a pipe dream. talk to the ibew, members in nevada that helped to install the largest power station in north america. steel workers filled wind turbines right here in pennsylvania. it is high time that we the bulk the myth that we have to make a choice between your jobs and a clean environment. because the truth is that we can have both. by doing and what is right, we will have both. -- by doing what is right, we will have both.

if we build an alliance with the environmental movement, we will have both and we will both wind. what kind of labor movement do we need them up a labor movement that understands that in a global economy we have no alternative but to build a truly global unions. unions with it the ability to confront corporate power wherever it -- unions with the ability to confront corporate power wherever it raises its head. a shoe factory in vietnam, a coal mine in colombia. brothers and sisters, the corporate agenda does not end at the edge of the water. neither can hours. [applause] we need a labor movement that does not only win strong labor

laws, we need to learn to use them. we have been working hard to win the employee free choice act. i swear to you that come hell or high water, we will win that act and bring unions to every worker in the united states. [applause] but that is not enough. we need to hit the ground running with the strike force of 1000 professional organizers was only goal is to see to it that every worker that wants a union contract gets a union contract. [applause] they will stand sentinel,

sending a message that anybody who dares raid an afl-cio union, 1000 organizers will come to their defense and they will never allow it to happen again. [applause] i am not only talking about the private sector. right now 40,000 tsa employees are on the verge of winning their collective bargaining rights. our brothers and sisters are going to organize them. brother john, i want you to know that we will stand with you until every last one of those

employees is organized. [applause] it does not end there. there are 7 million americans working in state and local government who do not have the legal rights to collective bargaining. they are teachers, classified, firefighters. steelworkers, sanitation workers, police officers. they truly make america happen. right? [applause] brothers and sisters, first rate public employees are not second- class citizens. they deserve the right to organize. we are going to fight to see that they get the right to organize. [applause]

you know, the question that we face is not just where we organize. it is who. i want to talk to you about that for a moment. we need to finally come to terms with the fact that union halls that should have been meeting grounds for understanding have often been breeding grounds for bigotry. millions of people of color, millions of women have paid a staggering price. we have a moral responsibility to take the benefits of union representation to those in the labor movement that have been

walked past. that means organizing poverty wage african-americans, latino and asian workers. [applause] it means reaching out to women. women are 50% of the work force. they earn only 77% of what men do. it is time that we made a 100% commitment to organizing them, and a 100% commitment to getting them 100% of the pay that they deserve. [applause] [applause]

it means something else. it means organizing immigrants. there are always going to be some people that buy into the line that immigrants are coming over here and stealing everyone's job. you know something? when a company looks at its balance sheet, they do not distinguish between workers that were born here and those that were not. all that basie our numbers. brothers and sisters, let me ask you a question. if employers are able to look at us and only see workers, should we not be able to do the same? [applause] it is time to build a labor movement that leaves no worker behind. [applause]

am i suggesting that we abandon all of our traditions? no. but while tradition should always have a vote, it should never have a veto. one area where we are going to change tradition is political and legislative action. part of the legacy of john sweeney is an afl-cio whose voice is heard loud and clear from the courthouse to the statehouse to the white house. [applause] today we are not just winning sympathy. we are winning elections. now it is our job to use those victories to win better lives for americans.

you see, after this convention, are lean and liz and i are going to fan out across the country to begin the work of crafting a progressive economic that agenda for all americans. an agenda that spells out our expectations of the men and women that we support and the consequences of turning their backs on working people whose votes put them into office. now, what is going to be in the agenda? frankly, that is for members to decide. we do know that we need to take on the problems that are robbing middle-class families of any hope for the future. problems like pensions, education, child care, their

taxes, putting wall street back on a tight leash. bargaining trade laws that create good jobs at home. but the cornerstone of any progressive economic agenda is health care reform. [applause] i want to talk to you just a moment today about that. yesterday we heard from the man who, to my way of thinking, is proving to be the most pro- worker president of our time. he called of us to join him in the greatest moral crusade of our time. he asked us to mobilize our members, their families, and working people across the nation, to join him in this

crusade. today our answer to president obama is yes, weekend. yes, we will. -- yes, we can. yes, we will. [applause] yes, we will, because like you we know that we need to build a system that offers the care that americans need at a price that americans can afford. because, like you, we know that the way to make it happen is with health care reform that includes a public option. mr. president, so long as you stand for that public option, we are going to stand with you. [applause]

now, i know that we have all heard those that have said that we should be satisfied with a health care plan that does not include a public option. they seem to think that we should settle for whatever bill a few republicans will sign onto. that we should then declare victory and go home. brothers and sisters, but what they need to learn is that there is a difference between declaring victory and actually winning victory. we intend to win victory, not claim it. [applause]

they need to learn something else as well. a plan without a public option might be a lot of things, but it sure as hell is not reform. i will tell you why. not because we lack faith. faith in a free market. quite the contrary. it is because we do. because we and understand that the stranglehold that the insurance companies have over today's health care system has eliminated even the illusion of competition. even they admit that. if you listen closely, listen closely to what they're saying, that a public option would create an overblown inefficient bureaucracy. plus it would attract so many

customers, it would put me out of business. let me ask you something, am i missing something here? are we missing something? brothers and sisters, if of republicans believe all of their rhetoric about the miracle of the free market, they should not be fighting against us to stop the public option, they should be fighting with us to pass it. you see, we have to break the health insurance monopoly. if you know people out there that do not know why, just tell them about meghan. meghan lives in oregon. she came in and said that her husband developed cancer in his jawbone in 2000. as a result, the left portion of

his job was removed, leaving him with a partition between his sinus in his mouth. he can hardly eat. he was finally fitted for an artificial jaw. it was costly and painful. the insurance company refused to pay. because they said it was a dental problem. then there is mary, in indiana, who wrote in august of 2005 that her husband was given a prognosis of six months to two years after a diagnosis of metastatic ocular melanoma. with a research trial we were able to stave off the advance of the disease for 16 months. when there was new growth, the insurance company denied new

treatment. we appealed and were overturned. things were better. one year ago last july, the cancer began to grow again. again, we have it treated. again, the insurance company did not want to pay. this year the growth continued. we have been in a constant battle with our insurance company for coverage. my husband is in and the stage liver failure. just today he began chemotherapy to try to reduce the pain. he wants to survive long enough to see our daughter get married. the insurance company is still refusing to pay for the treatment. now, i know that a lot of us would for for a single payer health care plan. i know that i sure would.

but brothers and sisters, it is fundamentally immoral to leave any one's life in the hands of the death panels of the american insurance industry. i pledge to you that we will not do that any longer. [applause] we are going to fight for the president's health-care plan. by god, we are going to win that health care plan. right? [applause] what kind of labor movement do we need? we need a young girl labor movement. a green labor movement. a labor movement that can

project power to defend workers anywhere in the world. organizing the unorganized. a labor movement that winds health care for every family. a labor movement that stands by its friends, punishes its enemies, challenging those who cannot decide which side they are on until they do decide to be on our side. [applause] now, i can see the pundits already. can you make it happen? i know that we can make it happen. i also know this. to truly succeed, we need an afl-cio that speak for all union members. a movement that is both united in name and purpose. lane kirklan once said that all sinners belong in church and all

unions belong in the afl-cio. i do not see any sinners out there. i do see brothers and sisters that share our passion for a strong, winning labor movement. our message to them today is the comeback and we will build that strong labor movement together. [applause] from time to time a generation of trade unionists is called upon to reshape organized labor. to meet the needs of workers in a new economy. brothers and sisters, now it is our turn. it is up to our generation, up

to our generation, to those of us in this hall to build a new, stronger labor movement. a union that speaks as clearly and boldly for the deeds of america today as it did to the men and women who stood up here in pittsburgh so many years ago. a union that understands that so long as they are paying for the hardship born of grief and greed, our work will never be done. bernard shaw once said that poverty is the greatest of our evils and the worst of our crimes. brothers and sisters, the labor movement that does not challenge the crime of poverty is the implicit in it. we are not going