and next to me, scott shane, national security reporter for the washington bureau of the new york times. i've been told i'm supposed to interrupt everybody. now has been told and read me. but looking forward to trying to move this conversation along, address what i think it certainly from my side of the aisle, an interesting issue which is, how does this play out when there's information classified the incident hands of the press, one of the legal paradigms that should govern that, how it should work as a practical matter in the real world. i combat this issue in a variety of ways. i currently am litigating on behalf of "the new york times" the foia suit to obtain what we believe actually exist, although the government denies, refuses to say, that is the legal memo underlying the drone strikes. some of my colleagues and the aclu have similar lawsuits were here so as well. but probably the way i most, pointedly was involved in this issue was with wikileaks. on june 23, 2010, i received a call from bill keller's secretary to come to be the that was about to take place. i was at the oral s

. >> scott horton, let me go back to you because scott shane made a point which reinforced a little bit of what david said which is that don't we know about the drones? using that as an example, haven't, hasn't the system worked in the sociological way that david sketched out that there has been significant leaks, and what is it that remains to be known? >> well, readers of the new york times know about the drones, i guess. [laughter] i think we can say that. no, i think, i think journalists have done their work in developing a lot of information about what our national security apparatus thinks, how it's motivated and how it's acting. i think that's true. but what we, but we have not had a fundamental policy discussion in the country that we need to have. and i think -- and i think we can define that along many different lines. but for me the key issue is, um, if we look at what's going on in pakistan, for instance, you know, we have the cia engaged on a traditional, in a traditional theater of war in what historically have been viewed as military tactics over a sustained period of man

now taking those decisions out of government and putting them in private hands to decide who -- scott shaneand the likes of scott whether this is going to harm national security to reveal this secret or not? >> no, i think it's problematic. i think we have to start by acknowledging that every government does have legitimate secrecy claims and that government should try to maintain certain secrets, diplomatic secrets, military secrets of the obvious sorts discussed even in the first congress, and the idea that individual citizens will make up their own mind to the claim of secrecy is bogus is problematic. however, we have thousands and thousands of cases historically now where we can show that, in fact, the claim of secrecy was bogus. and disclosures served legitimate democratic ends. so i think there's no easy solution to this. i think what we really have to -- the fundamental problem we have right now is that we've constructed a system where there's no downside for claiming security classifications. and if we're ever going to get a handle on the problem of gross overclassification, it's go

where you now take those decisions out of the government and put them in private hands to have scott shane and the likes of scott decide whether this would reveal the secret or not? >> i think it's problematic. we have to start by acknowledging that every government does have legitimate secrecy claims and the government should try to maintain certain diplomatic and military secrets of the obvious sort, and the idea that individual citizens will make up their own mind to claim secrecy is problematic. however, we have thousands of cases historic we now where we can show that in fact the secrecy was bogus and disclosure serves legitimate space and so there is no easy solution to this. the fundamental problem we have right now is we have constructed a system where there is no downside for claiming security classifications and if we are ever going to get a handle on the problem of the over classifications, it's got to be creating a new system in which there are risks to a civil servant making the decision to classify something that shouldn't be classified. >> scott shane, the county the to chal

the best reporting on this has been done by a newsweek journalist and joe bicker and scott shane bauer of the new york times. when it comes to individual strikes, whether signature or not, you can only infer it by the number of casualties. signature strikes tend to kill more people, i think. >> it's an assumption? >> it is an assumption. strike refers to a a group of people doing certain things and not to one person. the administration has, with an im -- a euphemism -- tads, something to do with terrorism. because signature strike does not sound good. so i cannot say more, because i don't know. >> i don't have an inside view of the criteria they are using to operate signature strikes, nor do i have the data. that's one area where greater transparency would be in favor of greater legitimacy. when i can talk to you about is the analogy of drones -- signature strikes on one hand and circumstantial evidence on the other. if i am a prosecutor and i have a murder, i want to prove that murder with eye witness testimony. i want to approve it with dna. i don't want to prove it with circumstanti

i mean, scott shane is right, virtually all media outlets, journalists, reporters when they have a storynd they know and they understand it contains information that may be very sensitive and classified, um, they all virtually always come to the agency first and say, look, this is what i've got. um, and, you know, there's back and forth that goes on. um, even when, you know, even when the stories are sensational and actually, you know, bad news for the agency. journalists are willing to horse trade. and the agency historically got us involved in a number of these discussions, you sort of negotiate. you try to figure out a way to get the worst stuff out, you know, or reset so that true damage isn't done. on the other hand, fully realizing that, you know, we may not like it, and we certainly didn't like it at cia. but as a practical matter, historically, no one is going to prosecute a journalist. i am convinced of that, a u.s. journalist. it will just not, it is not going to happen. so the reality, that's the reality we have to deal with, that these stories are going to be published, and,