fis the fisa court often issues court rulings containing substantive interpretation of the fisa act orthe public. until a recent change in law, many of them were not available to the full congress either. meaning that members had been called upon to vote on statutory changes without knowing how the court interpreted the existing statute. second, the justice department issues legal opinions that are binding on the executive branch but are often kept from the public in congress. i understand that these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that the meaning of a law like fisa, which directly affects the privacy rights of americans could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent american legal system. does this concern you at all? can you say a little bit about the importance of the law itself being public? >> well, the question for a judge, as a judge would look at it, is to examine first what policy choices the congress is making in its legi

first the fisa court often issues ruling containing substantive interpretation of the fisa act or fisa with few exceptions that have been kept from public ottilie recent change in the law many were not available to the full congress either meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second the office of legal counsel the justice department issues legal opinions binding on the executive branch but also often kept from public and congress. i & d's legal documents may sometimes contain classified operational details that would need to be redacted but i am concerned the meaning of dewaal like fisa which directly affects privacy rights of americans could develop entirely in secret i think it flies in the face of traditional notion of open and transparent american legal system. does this concern you at all? can you say anything about the importance of the law itself being public? >> well, the question for a judge as a judge would look at it is to examine first what policy choices the congress is making in its legisl

first, the fisa court often issues rulings involving substantive interpretation of the fisa that with very few exceptions have been kept from the public and until a recent change in the law, many were not available to the full congress either. meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second, the legal department issues rulings binding but kept from the congress. these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that fisa could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent legal system. does this concern you at all. can you say a little bit about the importance of the law itself being public? >> well, the question far judge is -- a judge would look at it is to examine first what policy choices the congress is making in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would o

first, the fisa court often issues rulings involving substantive interpretation of the fisa that withy few exceptions have been kept from the public and until a recent change in the law, many were not available to the full congress either. meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second, the legal department issues rulings binding but kept from the congress. these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that fisa could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent legal system. does this concern you at all. can you say a little bit about the importance of the law itself being public? >> well, the question far judge is -- a judge would look at it is to examine first what policy choices the congress is making in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would opera

>> the interesting thing about him, he was also the chief judge of the fisa court, the secret court that handled warrants on wire tapping, and he was the only judge on the court who was told by the bush administration that they were approved that they were going around the fisa court with warrantless wiretapping. so he has a lot of history now with the bush administration and with the issue of intelligence and what's properly notified and what's not. >> in that may 13th hearing this year, the judge said about the government's secrecy, quote, i am sick and tired of getting the runaround. and, quote, you handcuffed the court this nonsense. and the justice department was, quote, saying the u.s. is not accountable for their own lies. what is he really saying? >> the interesting thing to me, i looked into this case a several years ago as a reporter. i tried to report on the horn case before it became public. and it was very difficult to get any real information and it kind of boiled down to a he said/he said issue. so i was never able to actually publish a story about it. and then when i saw

and as i understand it, there are review processes in the fisa procedure. i'm not a member of that court so i'm not intimately familiar with those procedures, but i know that this is a part of the review process there in part. and so when you ahave concern, there is always some attention paid to the issue of the public reviewing or looking at the actions that a court is taking. but that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons. and so courts -- i did as a district court judge and i have as a circuit court judge, looked at situations in which judges have to determine whether juries should be impanelled anonymously. and in those situations we do consider the need for public actions, but we also consider that there may be in some individual situations potential threats, the safety of jurors that require an anonymous jury. i'm attempting to speak about this as a -- always a question of balance. you have to look at first what congress says about that. >> but the concerns y

congressional approval, and indeed, in this case, contrary to an ongoing piece of legislation, the fisathe executive branch could go ahead and do this anyway. and that's a prime basis of the criticism and i think it's a justified criticism. >> how tough is this judgment -- i guess there's a political judgment and a legal judgment -- for eric holder in signaling that he's going to go ahead with a prosecutor for those who went outside those lanes of enhanced interrogation of the white house guidelines in their interrogations? >> it's very tough. and i think you said it just right, there's a prosecutorial side and a political side. the president has given every indication he wishes he could put all this behind him. he has enough trouble getting legislation through congress and keeping the public supporting him, and this is divisive. that said, law is law. and law makes certain demands and that's what attorney general holder's got to decide. and it's not an easy choice. >> don't envy him those decisions. floyd abrams, thank you very much. it's great to see you. thanks for joining us today.

but i am concerned that the meaning of a lou like fisa could develop entirely in secret. think it flies in the face of our traditional notion of an open and trance parent american legal system. does this concern you at all? you can say something about the importance of the law itself being public? >> well, the question for a judge, the way a judge would look at it, is to examine first what policy choices congress is making in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would operate. as you said, there have been amendments subsequent to that. and so a court would start with what congress has done and whether the acts of the other branch of government is consistent with that or not. the issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at with respect to an individual case. as i understand it, there are review processes in the fiza procedure. i am not a member of that court, so i am not

now, i understand that fisa premiere wang said a few words to you about the shanghai expo, and i want to reinforce his message. the theme for the expo badders city, better life will present a vision of a sustainable, healthy and prosperous world and the 21st century. it is anticipated that more than 70 million people will visit and more than 190 nations will participate. six months ago it was not clear that the united states would be one of those 190 nations. but, thanks to a number of you, we are on track to be able to do so and i salute vice premier wang for his leadership. he was at some of you know, the chair of the committee for the beijing olympics celeste that is any indication of his organizational acuity i think we can look forward to a successful shanghai expo. the u.s. national pavillion will be informative, intertek jean-- showcasing american ingenuity, looking at how we can address together the global challenges like climate change and clean energy, sustainable agriculture, mass transit, health and economic development. we are delighted that a number of leading american c

we have argued and we have tried to address that problem by setting up specialized courts such as fisa for example to try to husband all of the surveillance issues under one judicial roof to answer a problem that judges are not -- there's nothing about being a lawyer that makes one confident in these issues but the other part jackson raised cuts across the whole swath of national security issues and can't be addressed buy simply channelling everything into one courthouse so the judges get better and more adept at dealing with it. and that is that a political community, the most important decisions that it makes our decisions that it makes an out its security. and we did the framers -- the system the framers gave set up to deal with that was that the people whose lives were at stake -- i should say the people who make decisions about national security have to be answerable to the people whose lives are at stake. they have to be accountable. and when you advocate these national security questions whatever they are to the judiciary, you're basically taking it to the insulated branch that

rrantless seching that they had do illegally yway, one of the minor comforts in th legislation, that fisauthorization, for those who mourned the fourth amendment, was the fact that th gislation required the inspectors general of the pentagon, departmentf justice, the cia, the nsaand the office of the director of national intelligence tcomprensively review what the bu adminiration did in terms of warrantless wiretappg. that report is i today the public at large t accesso the unclassified veion of it. it's sort aoozie. first, the fst legal opinion that tried to pseudo legly justifthe program wasn't sued until weeks after t program started. second, that legal opinion was issued by thvery famous torturmemo guy john yu who appears to he been hand picked to write the lal justification for the prram even as his boss and evyone ee in his department was kept in theark entire third, attorney general john ashcroft appears to have signed off onhe program for two and a half years withoutctuall understanding what he was signg f on. the bottom line? we are talking about aery sml number of people involve

the entire justification by th bu administration for averting the fisa laws and going with the waantlessetapping program s that they said it had been saving lives and thwting attacks. that is a fundamental ise that has been at the het of this debate ever since it becam public. >> it is because of your repoing th we know about the warrantless wiretappg program egin with. the new repo here revealing that the president also authorized secret surveillance activitieseyond wiretapping d without details. the report simply cautioned the collection activits since 9/11 were unprecedented and retenon and use of the infmaon should be carefullmonitored. it sounds scary. is it in fact scary? >>ell, we have reported on what som those programs are. what they have done ry carefully here is theyave talkedbout what the president confirmed. whathe president confirmed was our initial stories about what is now kno as thterrorist surveiance program. subsequento at we reported on data ning operations and recently eric and i reported on how the fundenl debate at the hospital scene was aut dataining involving e-m

question of congressional oversight, of the executive branch, on these very tough cases and issues of the fisa law and electronic surveillance, for instance? >> they are very tough cases and it's a very delicate balance between our liberty and our safety, which is why we have a constitution and which is why in the last administration, you had, you know, a majority of the supreme court mostly republican appointees overruling the white house white house on constitutional grounds on not one or two or three or even four instances that the reach of the executive powers was compromising the constitution, so i think in that tradition, you will see here a judge for over 17 years has been consistent in applying the constitution. has the moral courage and confidence to rule against the executive if she thinks that's appropriate. she has done that a number of times over the years in many decisions. she will adhere, i think to the constitution, but also allow the government and the law enforcement authorities to do their job. the president of the international association of chiefs of police has not been

and the revised fisa laws need to be repealed so the supervison goes back to the courts and so there's checks and balances and the databases that have been accumulated over the past eight years should be thoroughly investigated by congress to know what, who they've accumulated email and bank accounts and property accounts, everything, we need to know what is in the database and why it's there and what purpose is i it serves, and there's no evidence that the system has kept us safe as you have read previously. >> in the "washington post," a.i.g. plans millions more in bonuses and is now consulting with the federal government to figure out what the company should do about paying $250 million in promised bonuses due to come in the next nine months. and also a photograph of the president and -- president obama and the first lady meeting with the pope in rome during his trip to the vatican. and the u.s. general sees afghan arm police insufficient, and the newly arrived top commander in afghanistan said that the afghan security forces will have to be far larger if president obama's strategy

that maybe in cases of the war on terror the old laws during the cold war that were developed, fisa and these types of things where you had to have probable cause to get these warrants to listen in on to a phone conversation or to look at an e-mail, possibly the war on terror changed those particular laws and the ways in which we can fight this war because terrorists not readibly available to us. we don't know who they are so maybe we need to look at this communication to see who they are. steve: and mr. wu does a good job about talking historically, f.d.r., a year before pearl harbor said, ok, you saw the means we have to intercept any sort of electronic information about foreign entity that are trying to do us in. and this all goes back to -- just remember, get in the time machine, go back to those days after 9/11. we realized it was al qaeda. but the intelligence community realized we don't know much about al qaeda so pretty quickly at the n.s.a. they said, ok, there's one way we can do it, we can intercept e-mails, cell phone transmissions between afghanistan, pakistan and the unite

today we begin a process to which the senate engages in its constitutional role to a fisa and consent on your nomination. this week's hearing is the only opportunity we and the american people will have to learn about your judicial philosophy, your temperament and your motivation before you put on the black robe and are heard from only in your opinions. the president has asked us to entrusting with an immense amount of power. power which by design is free from political constraints, unchecked by the people and unaccountable to congress except in the most extreme circumstances. our democracy, our rights and everything we hold dear about america are built on the foundation of our constitution. for more than 200 years, the court has interpreted the meaning of the constitution and in so doing guarantee their most cherished rights. their right to equal education, regardless of race, the right to an attorney and a failed-- fair trial, the right to personal privacy, the right to speak, boat and worship without interference from the government. should you be confirmed you and your colleagues

does it strike you as odd that a complex legal analysis of the anti-torture statute or the fisa act that considers whether the president could violate those statutes would not even mention the youngstown case? >> i have never been an adviser to a president. that's not a function i have served. so i don't want to comment on what was done or not done by those advisers in that case. it is likely that some question and i know some are pending before the court in one existing case. so i can't comment. all i can comment is whether that is surprising or not. i can only tell you that be surprised if a court didn't consider the youngstown framework in a decision involving this question that cases framework is how these issues are generally approached. >> i appreciate that answer. let me go to a topic that senator lahey and hess have discussed with you, the second amendment. i believe the second amendment grants citizens an individual right to own firearms. i was elated when the court ruled last year basically what i think had been a mistake all along to not recognize it as an individual right. th

as i said earlier they have over a million fisa terse this year. the center we are in, the w. reynolds research center was opened and 2006. if you come here you can still to were the mansion itself but can spend much time inside this very rich gallery and theater and as we are talking today i think you will see some of the folks visiting hour around because we are in one of the exhibit rooms that depicts washington's daily life and people are touring as we are talking, so we are part of mount vernon's operations today. for john ferling let's take our first telephone call from boston and this is john on the line. you are on the air. >> caller: yes, i would like to ask mr. ferling, when they shifted the focus of operations to the south in 1778, what person or persons made that decision? a >> guest: i think it was a decision made by the british ministry, but largely by lord george germain, who was the american secretary. he was responsible for american affairs and can amount to what we would think of as the secretary of defense in the united states today. and it was a decision th

the conventional wisdom under the constitution it is the responsibility of the senate on its debt fisa and consent function to question the nominee to determine how she would approach important issues. it also presents a good opportunity to shed some light on the operations of the supreme court of the united states in an effort to improve those operations. it has been my practice recently to write letters to the nominees in advance as i discussed with judge sotomayor during the so-called courtesy visit i had with her and she graciously consented or to respond or received the letters and was appreciative of the opportunity to know in advance the issues that would be raised. sometimes if an issue comes up perhaps the nominee doesn't know the case or the issue and may be compelled to say let me consider that and i will get back to do. so this enables loss at the hearings to move ahead and to the substantive materials. the first letter i wrote involved congressional power and the adoption by the supreme court of a test on congruence and proportionality which justice scalia called a flabby

his work focused on national security issue ins colluding supervisoring the government's use of fisa, learepresenting th department of national security council and assisting the intelligence community. our second conditions is jeh charles johnson, general counsel for the department of defense, following non nomination and confirmation by the united states senate. in this capacity, he serves as the chief legal officer of the department of defense and legal adviser to the secretary of defense. mr. johnson's legal career has been a mixture of private practice and distinguished public service. he began his career in public service as an assistant united states attorney in the southern division of new york where he prosecuted public corruption cases between 1989 and 1991. gentlemen, if you would please stand. do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? thank you. please have a seat. mr. kris? we would like to hear from you. >> thank you. mr. chairman, senator kyl and members of the