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tv   Key Capitol Hill Hearings  CSPAN  November 11, 2013 8:30am-10:31am EST

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president's arrives and civil liberties oversight board. it's examining changes to the nsa's collection and surveillance programs. you'll hear about the -- >> later today president obama honors the nation's veterans at arlington national cemetery during the traditional wreath laying at the tomb of the unknowns. after that he'lledly his veterans' day address at the nearby amphitheater. you can watch live coverage of his remarks beginning at 11 a.m. eastern over on c-span. >> civil liberties oversight board recently held a public meeting to discuss possible changes to the -- [inaudible] [audio difficulty]
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>> good afternoon. we're now going to start the first afternoon session. and the topic, again, is theirst foreign intelligence surveillance court. we're pleased to have as witnesses james baker who'shave formerly with the department of justice office of intelligence and policy review, judge james carr, who's senior federal judge with the united states district court of the northern district of ohio and formerly a judge from 2002-2008 and marc civillingier -- zwillinger who is a former doj attorney in the crime and intellectual property section.rt i understand that each of you have brief prepared remark, so please go ahead, and afterwards we will have, as we did on the last panel be, rounds of
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questioning, five minutes, thisa time for each of the board members. but please go ahead. >> i'd like to thank the board for inviting me back. it's truly an honor to be here, and it's an honor to be able ton discuss these cieps of issues ie this type of setting, so ith appreciate the opportunity. i justes have a couple quick comments the focus j of our discussion today is on section 702 and section 215 of the usa patriot act, and while these are very important statutorily-authorized judicially-reviewed, warrantless surveillance programs involving the collection of communications and communications-related data with respect to many americans,o they're really only part of thea story. and i think that was discussed this morning in the panel that i was able to attend. in particular as the panel is aware, the government conducts surveillance activities using a thurm of different authorities -- a number of different authorities,ice especially including outside the united states.
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and i would just submit to the board that as you're evaluating these issues, you think broadly about them because they do -- the pryce issues -- privacy issues that you're confrontingig do pop up in a number of different contexts and as another example even with respect to telephone records, telephone calling records, thera are several ways -- 8-10 by my count depending on how you count them -- 8-10 different ways that the government can go about obtaining the same types of record you're talking about when you talk about 215. it's only part of the story. so i would just, i would urge you to think broadly. and as i mentioned the last time i was here, i would also urge you to think broadly because of the topic that has not been discussed very much is cyber. be and the need to think about ther critical privacy issues and the data collection issues as they pertain not only to counterterrorism and foreign interpretation, but also to cyber. and i'm happy to talk about that at length if you're interested.
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the other quick point i would make at the outset is having to do with the foreign intelligence was withcourt, i you department of justice and i can elaborate at length, if you want to be. in many ways i would say, notwithstanding much of what has been written in the press, the fisa court is a national treasure. it has done its job. been saidat has not enough, so i wanted to say that at this point. however, the fisa court is not some type of super inspector general over the whole apparatus that we have to collect intelligence. that is a multibillion-dollar enterprise conducted by thousands of people. that is not what the court does. i think, with respect to 702 and 215, i think we have reached the outer limits of what you can reasonably expect a court to do in this setting.
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i'm happy to discuss that at length. at the end of today, in my mind, it is the responsibility of the president, the executive branch, and congress to conduct management oversight and control of these types of activities. i am happy to talk about transparency and the issue of whether we are going to have an advocate or something like that in the question speed thank you very much. >> thank you very much for coming back with us again. judge carr? >> just like baker, with whom i worked for five or six years -- i cannot for member if you left before i did or not. i am pleased to be here and part of the conversation. as you may be aware, as a result of the op-ed i happened to january,n the 23rd of making what i consider to be of modest proposal, which i will repeat this afternoon to improve process and certain applications before the court
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and, i hope, would enhance public confidence in some of the decisions the court reaches. that proposal is quite simply that congress give the fisa court judges either the discretion or perhaps direct to obtain the services of whende independent counsel the court is presented with something that is new and knowledgeable. on very rareppen occasions. i want to emphasize how frequently this kind of for visitation would be necessary. the vast majority of fisa applications are simply fact- based. there is a very low probable cause standard. working on behalf of a foreign government or terrorist base organization -- that is the probable cause showing. once it is made we have to issue the order, don't have the
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discretion to second-guess the government's purposes or reasons. it acts very much like a search warrant or title iii order. that onequent occasions infrequent occasions -- jim baker -- on infrequent indications -- john baker would be the one who did it. technique, if something new or unusual about this takes it outside of the ordinary -- really quite straightforward and typical, routine fisa application. the government would do that, they would do it for good reasons because they knew we had entrusted integrity to function in -- to function effectively and have the confidence to know what they are saying to us. that requirement became codified in the first draft of 2008 with the foreign intelligence surveillance court whirls.
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-- surveillance court rules. it seems to me to be a good trigger point for a judge to exercise his or her discretion or perhaps for congress to mandate when that notice is given, but then the court calls upon what i would envision to be three small codger i of cleared attorneys, probably in the washington area, probably with some sort of experience in this area. they wouldn't have to spend a lot of time learning how the wheel turns, as it were. in to ourual came present. -- to represent. represent the fourth amendment of the constitution and communications privacy. be an very infrequent
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occasion when this would be necessary. i want to underscore that. i think the benefits of the court -- the benefits to the courts in the process would be substantial. we workccustomed to how in the adversary process. -- you say? how it that is how we make decisions. when the government "wins," with a judge says you can do this or , it has no interest and appeal. it is not going to go to the fisa court of review and say, we won but nonetheless look at it. circumstance, whether there is a new word novel technique or some other aspect where the court has called upon and thatdual, individual will be able to appeal.
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review is an ordinary -- the pellet review is very important. there are times when i do get reversed and say, i was wrong. think goodness they are there. me since icurred to first wrote that op-ed piece. it seems to me this outside counsel, i haven't really gotten a name for it yet, can also perform an important role when there is a troublesome issue of noncompliance. once again, the government is required to report instances noncompliance. it did so every time i was there. judgermer presiding lengthen the opinion. that --ome is it just some who suggested that maybe there were reports of
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noncompliance. to have theuseful discretion to reach out to somebody to assist the court. the court in understanding the issues and assuring that what went wrong has been fixed and does not have any serious cause to it, or if it does. see that that gets fixed. at some point i hope to be able to talk about the role of legal advisers. court isk for the absolutely crucial. i don't think it is well understood by anyone outside the court. the role that they play is extremely important and i hope we will have a few minutes to talk about them and their role and where it fits and everything. one final thing. it is my view that we should all keep in mind, when talking about foreign intelligence collection,
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it is a very limited activity under the foreign intelligence surveillance act that if you look at article to -- the article in constitution that establishes the orifice -- the office of the president. you don't find the word "judge" in there at all. this is a very unique circumstance where the third branch actually plays a role in overseeing the activities of the executive. in an area where the executive constitution has exclusive , the conduct of foreign affairs and the dangers. thank you. >> thank you for inviting me as well. especially thank you for seeing me on the same side as judge carr. this may have been -- this may
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be the same -- may be the first time i have sat on the same side as a fisa court judge. i have helped dozens of clients respond to government demands for data to mobile in criminal cases and under pfizer. although my representation of yahoo! before the fisa court is why i'm here today, my comments are my own. given me aork has unique view into the position of providers, service providers, who have received demands under fisa and helped me see two aspects of the process, which i believe are inconsistent with our legal system. cloak of overall broad secrecy. postedr these issues cookies by providers and by extension. providers are served with classified fisa orders or directives.
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they areectives, facing a very unfamiliar process . based on that a mere glimpse they are being asked or compelled to disclose all private communications they carry. due to the secrecy providers sump -- few places turn to for advice. provide us with limited resources struggle to even understand, much less react accordingly to the profits they get. are the only parties with a statutory authority and the opportunity to challenge these orders before their air executed -- before they are executed it is designed to make between last barrier government potential overreaching. the government has not been given the authority to do a full review of this section directive unless it initiates a challenge. a decision by a provider to challenge must be made alone, under a cute time pressure, with
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sensitivity to what is at stake. when providers do great a challenge. know that even though the rules have really been tested, the legends of handling classified litigation are very difficult. documents and the court is like trying to get a letter to santa claus. the rulings come down the same way. the government regularly submits export tape papers that their providers are not permitted to read, even if it is presented by a lawyer with the right clearance. this happened recently. my second case in the fisa court was an action brought by five providers, seeking the right to disclose the number of intelligence processes they have forived, just the numbers each former process. and to oppose this release, the government has made a secret filing to justify why this disclosure has caused harm?
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they refuse to let even clear cancel see that filing. hard toan imagine it is respond effectively to something you cannot read. even the adversarial proceedings, the court is hearing only one side of the issue. i think we are lying on providers who have the toilet in secrecy and fight the court with one hand. why we have a special advocate, one that would have the same access to classified materials, who can make a difference. judge robertson pointed out in the last hearing that judges are used to making decisions after hearing both sides of an argument. that is the way our system is structured and that is what makes the decisions informed and legitimate. an advocate can help insure that the other side of the argument is not just in the extremely novel cases, but and pulled collection cases but other cases as well. the other side is presented that the advocate can weigh in on the knowledge is court.
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>> we need look no further than some of the odd logic in some of the recently declassifiedn th decisions to see what happensd when the court and theourt government work through theh th issues without any balancing input, and and if the decisions wouldn't have come out the differently, even if the court f had heard from an advocate, it would give the process moren op legitimacy and restore faith in the court's decision making. i look forward to our further discussion of the special advocate and issues related to the court. >> thank you. we'll start the questioning with judge -- [inaudible] >> thank you. i surmised from the morning panel that the government as well as many outsiders have commented reasonably comfortable with the idea of this court being able to call for an amicus to help them on particular novel issues of interpretation.
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i also think that judge carr and many other people who commented on the outside are suggesting something that's a little bit stronger, a little bit moremo energetic than that, namely that you'd have a body of outside counsel. so i'd like to pin down a couple of things initially with judge carr, but certainly with other people's reactions too. and that would be if you had such a body of advocates with b secure clearances on the outside, do you think that itont should be entirely in the discretion of the fisa judge to decide when he or she wants that kind of help?that and more specifically, i think,t because judge carr raised the problem of appeal, and i think most of us whose experience is familiar with regular article
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iii -- nothing meant by regular, but article iii courts -- is that the appeal is a very necessary part of the process. now there have been constitutional questions raised by other people about whether ou not aart from the provider -- apart from the provider if you tried to give an amicus or an appointed, somebody appointed from a panel of secured lawyers the right to appeal, you might run into constitutional objections. so, i think those two basic questions about whether or not you would leave the initiation ofth the appointment of such persons entirely in the hands of the fisc judge and whether or not once that person was in and had participated in the lowercor court proceedings, should that person, that advocate, whatever you want to call them, can that advocate constitutionally be given some right of appeal? >> well, let me say to try to
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analogize, i do not think that an office, an outside officethat that reviews every single application is necessary. >> no, i don't --lica >> my thought is, how i envision this, have a relatively small number of attorneys, something like a cja panel, criminal justice act panel, who will in time gain experience because of their small number who arebe completely wallr to wall securiy cleared. mr. zwillinger raises something that i hadn't really thought about it, but by all means i think that individual should have as complete access to everything that the court isvidu hearing as the justice department prosecutor has, that there should be no withholding,e no secret filing or whatever. hs i actually haven't thought about the constitutionality of being able to appeal.
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opportunityive the of further review by a judge panel of foreign intelligence and surveillance court review. ultimately perhaps to secure a supreme court review. cannot answer your question about that. i'm not sure that i should as a judge. in any event, i do not know. i have been thinking about this further ith think that both under some circumstances it should be necessary or the judge, let the judge has discretion in other words, this is what i called rule 11 notice is given. and i don't know whether it would cover, i think it would cover something the prison program and so forth. that was certainly my intent. but also give the judge the option. sort of two-handed and so it's not just when the rule notice
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comes in. that could be a trigger but then the judge can retain discretion to reach out, but it would be a small group of lawyers, precleared, experience and again i think use of relatively infrequently, or perhaps, this just occurred to me, when a provider has an interest and the provider wants to appeal, perhaps the provider could also request that the court appoint an outside attorney. >> if i could jump in on that for a moment though. i would undoubtedly be one of those attorneys. i'm the only private attorney to be before the court of review. i don't think it's enough. that is, you talk about the constitutional questions of letting someone have the standing to appeal. the court believes it doesn't have the power to force the executive to make classification decisions differently. so the executive is not going to provide this private counsel with the full access to
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classified material that would be necessary. certainly not on a historical basis. that is, maybe for this particular case but an advocate would know that two years ago the solicitor general stood up and made a representation to the court that, for example, as happened that there is no database of incidentally collective u.s. persons collections. and only enacted a bit and showcases would know the representations of government making one case may be inconsistent and representations made in another. so as much a semi-business interest i would love there to be a small group that would have exclusive rights practice before the court, i don't think would satisfy the interest of protecting the constitution because by definition that group will be limited. i would love a special advocate to be able to bring the help of outside counsel and the type of penalty described on a particular case but i think there has to be someone with an institutional interest that would look across cases and deeply challenge the
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government's programs not just in one case that they may be admitted to practice. >> thank you. mr. dempsey. >> jim baker, any thoughts or comments on what we've been talking about this because on -- you're trying to balance i think speed and agility and the ability of the government to move quickly without adding more process and the process is discussed today but there's a lot already. so we'll add more under any of these proposals. another issue is intruding on the president's article doing even more significant degree. everybody agreed i think when fisa was enacted this was what everybody was doing. this is what the act was all about, justified for a variety of reasons act them. there may be reasons to have it now but we have to be mindful that is what's happening and i'm worried about delegating to others, whoever it may be, the authority to disclose information, classified information to yet another
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party. i also worry about having an outside panel, and the concept of an advocate versus annika's on a case-by-case basis. we can talk about it later but the main thing i'm worried about is frankly the leak of information. it is hard to prosecute leaks case. the criminal sanction is there but it's hard to use. something that everybody was in the system has to deal with if they decide they want to leak something is the fact they may lose their job. they have skin in the game that's real, important, important to the families and they have to think long and hard about whether this is your something i'm going to try to leak something about. because you can lose your security clearance if you like and they still can't prove a case. i'm worried about this in a variety of different levels. >> if i could speak to that because something just occurred to me. it seems to me that, first of all perhaps you could create these people as some sort of, a small group that is somehow
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federal employee, avoided like the federal public defender. more important, there's never been a fisa leak by anybody who's been associated with a fisa office, court, as far as i'm aware. i'm not talking about a large number of people but as importantly, a lawyer might be difficult to prosecute but it wouldn't be very hard to take his license and his livelihood. i think that's something to keep in mind. jim actually raise the idea of federal appointment. the more i think about the risk of losing his license, and the potential risk of being prosecuted, i think at some point you have to have confidence in the people who pass these kinds of security clearances that they will do the job and maintain classification. in response to judge, i don't
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know, can congress mandate, one of the concerns about withholding classified information for this outside counsel, whatever you call it economy, can congress include that and say that person shall have the same access to all documents and information, classified or not, that the government finds? i don't know. >> i'm not an expert but by and large classified information procedures act setting in criminal case, the government cannot be forced to disclose information to the defendant. but the government can be forced to make our decision about whether to prosecute the person or the sanctions that may suffer for not disclosing information to defendant may be a dismissal of the case but i don't know it would work in this context but at the end of the day i don't think, i think it is a significant constitutional iss
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issue. >> with the analogy this situation be basically the court would in essence say just in cipa if you want to prosecute this person need to make this impression available this way but if you want to get your order you need to make this, i'm not going to rule on this until i'm sure that i've had both sides of the story. >> you have to figure that out. >> as a matter fact, it would make sense, you want this order, well, we're going to play with a level playing field and all the cards up on the table. that may be a way around it. >> one quick question. that are too i think related ideas at play. some people talk about the special advocate, some people talk about annika's -- amicus. is it possible that you could have a hybrid of this that sometimes you would have the
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classified lawyers, the sort of cadre invalid people precleared et cetera, and at least one case the fisker has invited not cleared amicus to comment on questions of law. is there any possibility that that could happen at the instance of first impression or whatever when the application is first presented, that the court could say all the details are secret but there is the question? is the wall the one where the amicus but dissipated in an unclassified context have to do with the wall? so you could have a hybrid of both of these. do you feel that, yes or no? >> i was trying to think whether
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the program itself because it, i think it was you, some of this money pointed out a reasonable, i think that may well be in play. i think smith is not particularly reliable base that was a pin register so forth. my problem is someone else mentioned, i'm not sure you can so easily untangle the secret from the quote pure question of law. marc may have a better grasp than i have. >> i have the same view. and actually sample in 2008 case, the question is whether the lawfulness of the casa smelled of the directive, the court relied heavily on the target of procedures to say the procedures in place for significant to provide constitutional protection. and had it not been for the leaks, it's not clear we would've ever seen them. so to argue even if you're in
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the case, or as amicus without seeing some of the factual basis, makes it very difficult to present a constitutional argument about whether the safeguards are sufficient. >> thank you. >> many of the circumstances i have in mind raise new and novel methods of collection, whether it's, i'm going to point to the public, the whole prison id itself, and so there's an intersection between the technology keeps running ahead of the law, both title iii and, therefore, else. i'm not sure it could be quite so finely sliced. >> building is something you just talked about right there with the technological advances, what is your understanding of the fed's current ability to use technical experts, technical consultants? is that something the fiscr -- i think we have heard competing
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views as to whether or not the fiscr can already do that. does it do what? should do it more? i'm thinking about new technologies, or to try and avoid what we've heard to be a problem of miscommunications from technologists through the lawyers, to judge his? so i ask the question whether there's already at capacity. >> keep in mind i'm not in the coming anymore but i would say you put your thing on a very important issue, this translation, a game of telephone where things get translated, that the real problem of a significant problem. might express was that if the court had a question we could bring in an expert from the government to talk to any technological issue that was required. i guess just thinking about it it seems to me that if the court wanted to bring in an expert
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from the outside, perhaps from one of the companies marc is talking about, i don't see any reason why that could not be made to happen if they wanted to actually speak to someone who is connecting wires together through machines and things like that. i don't see that as being something that would not be possible to do. you would have to bring in someone who has the clearest. you have to figure what kind of questions are going to expose this person did, what kind of information. it would be some security issues around that but i do see that as something that shouldn't be possible. >> does anybody else want to opine on that? >> if i could say, first, and again i don't know back in 2002, part of my experience as a rookie fisa court judge was to visit agencies and be shown and told about what's now, of course, is probably outdated as the flip phone or the old car funky phone, technologically. and i can recall one instance
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where we had the opportunity and we took it to be informed about a particular kind of activity. obviously, can't go into any detail, but i'm quite comfortable it's something we can reach within the government. i don't see why we can't reach outside the government. >> so simply understand what you're talking about. >> when you all were discussing directly as a possible analogy i just want to follow up on that briefly because cipa, the government at the end of the day has the ability not to bring criminal charges. there may, however, the other alternatives for the government to pursue such as immigration consequences, p&d's, invision a variety of things the government can do. you are talking about a situation where you've identified the believe to be the wrongdoer. does the analogy hold if you're talking about the fisa court where you have a hybrid preventative mission of any of
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these authorities as well as an investigative? if my question makes sense but it just strikes me may not be the truest analogy into the fisc situation. >> i haven't thought -- i have thought. i'm worried about yes, first of all the president being forced to disclose classified information and what decides it happens not to. i don't pretend that the answer but i think that raises real concerns. and for the president to give up the ability to obtain some type of otherwise lawfully authorized statutory approved type of collection that is consistent with the fourth amendment, you have to persuade the judges about that. i don't know. it's a real hot issue. >> i haven't thought about it until seven or eight minutes ago but it does seem to me as a judge we would, part of the ordinary process, we would say look, i've got questions. i would call one of the
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attorneys and say look, i have a problem with this. that would be a fact kind of a problem. it wouldn't be a technological kind of problem. but it does seem to be i have the ultimate authority. they have to give me i think what i'm asking them to give me if they want to get my approval. it's my understanding also that if i turned them down, they can simply show up next week with the next person but they've got to come back to the same judge that's turned them down, or appeal, absolutely. i think it's something that would certainly bear looking into by people who thought about and will think about it more than i have this afternoon about the idea, look, if you had this, i'm going to call the independent counsel rather than special advocate, because that has a different connotation. or amicus has a different connotation. my small cadre, and if i say i want the person of all the
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information you have, mr. baker, then he has a choice. eakin said judge, okay, we're going to appeal and find out if you can do that, which may be the way to go. that's the way we do things. if you don't like what i do, go find three appellate judges. >> one thing judge carr's comments raise for me though is the role of the fisa court as a prover as opposed to resolving an adversarial dispute. judge carr said his time in the fisc there was not as much of the show role for the court and the small collection decisions. so seeking approval from the court he had the right to contact anybody one and the government and ask for information. as someone who has been in an adversarial role before this, i find ex parte contacts between government and the this thread difficult to deal with and overcome. the fact that the same judge may been involved in deciding the book collection is lawful be
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assigned to the court to decide whether she been ever so challenge, is not a difficult of judges. it's not a magistrate issued a search warrant decide if it should be suppression. ago in fron a sample of judges e both an approval role and and adjudicatory role and their ability to call and ex parte contact and get information from the government made the difficult an adversarial proceeding in the procedure -- than approval. >> on the other hand when the prism application first came in, the subsequent application in all likelihood did not go before the same judge. and that judge had independent authorities to decide whether or not it could be approved. so a difference a process but it doesn't return to the same judge on rotation, 90 day explorations -- expirations. once in a while i would get something, i would have a year or two before but it was very rare i got the sequential and i
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don't think it would be necessary in that situation to go in for renewal or something to go find the same judge. in fact, i think it would not be. >> my point is more that the judges are playing two different roles. they are working with the government, executive branch, to approve a surveillance say come back and have it after this or need expertise on that and they're working to the process of approval but they're also the same judge, the same court that listens to an adversarial dispute whenever a provider wants to bring a challenge or if we create some sort of additional advocate or amicus to bring a challenge. we have to talk about the courts do role and how to sort that out i think. think. >> i use that term because i don't see the difference between what i did as a judge on the fisc and what i did as a magistrate or as a district judge later issuing title iii's. maybe the word improve, process review is the same.
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in that situation i'm often the judge wind up hearing the suppression motion, and the law is quite clear i can do that. so i don't see that there's that much distinction -- in fact i don't think there's any between the judges job as a fisc judge and as articles we judge or article i judge magistrate in issuing more conventional warrants. >> thank you. >> i want to switch gears and after so process to transparency, the subject of some of the other recommendations. these questions are more directed to jim and to judge carr. how feasible is it for the judges to write opinions in the first instance with an eye towards declassification or redaction later? just a setting for a minute we are talking about prospectively as opposed to retrospectively. is this an easy matter,
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collocated, can it be done, what do you think? >> first, let me say it was my experience. i don't know about the other judges with whom i served our judges today. writing an opinion as to ordinary understanunderstan d that was a very unusual event. because once again, it's like what an ordinary search warrant you don't write an opinion to you look at it. if there's possible -- probable cause, you issue. title iii order, you issued your advice order you issue it spent in the unusual circumstances though -- >> again, when a judge, part of my -- when he judge felt the need to write an opinion, and that's often triggered by a notice from the government that there's something going on that's unusual, and by the work of the legal advisers. they will alert us to issues that call for further consideration and reflection. i don't remember the number of
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course opinions, a few pages, maybe several pages i wrote but it was a handful. i think that's -- so part of it is in thinking about transparency, it's not like an ordinary court with ordinary cases where day in and day out your writing your opinions. >> i'm trying to figure out whether there is an opinion, how easy is it -- what you don't have is redaction that is nonsensical because of the redactions for how easy is it to write something that could be understood later in some way, in unclassified form? >> in the court of review, the first -- first decision, i think it was, that clearly was written in my opinion, it was clearly written by the judges to publish it. because they boiled down the classified stuff into a couple of different very small sections. so that the legal analysis and historical background, so when and so forth, they were able to put forward in a way that made
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sense but it wasn't like a piece of swiss cheese. you could understand the logic and the classified stuff because was concise. >> talk about the wall case. that case clearly, and he does participation was feasible, right? and there was an opinion that was publics of the something about the case that lent itself to public participation and publication thereafter. how translatable is that? >> so if you're to have some act of congress that said to the extent practical opinions of the fisa court shall be published or shall be presented in a form that can be readily published with something like that, if they were sort of forced to do it basically. i think they could do it in many instances. there will be some instances where it will be much more challenging to some of the technical ones where the facts of the case are interwoven with legal analysis, that's going to be harder. into fisc review the red couple of cases that were at play but
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it really wasn't a factual, factual or heavy technical kind of issue. my guess would be if the court had the idea that it had to do that. another option might be the court shall release an unclassified summary of the key rulings of the case or something like that, sort of like had notes or something spent let me ask you about that because we heard from another judge that he would rather not hear some is because summers is not always a full picture of what the opinion would say. and so from that perspective redaction is separable to a summary. judge carr, do you have a view about that? is there going to be an unclassified summary versus a redactor he? >> understanding that no two judges might agree on the review i might have, think about this for the first time. again, it all depends. what is the issue, does it
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really involves something that is classified or is it simply, i mean, can you recast it in a way? i think it's impossible to predict in advance how difficult or easy it might be. however, were there a default or at least the likelihood at some point of publication of part or all of the decision, i think certainly the judge could go into writing whatever he or she wrote with that in mind, perhaps deliberately write the opinion with an iq that. but to try to tell you when to be easy or difficult, it would simply depend on the particular issue and a setting in which it came out. it might be easy. it might be almost impossible. >> i like the idea of a summary. without further detail, we have approved -- i approved this or the court that sits on and that
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of the weather has but i think it's very worthwhile. i can really answer your question directly, i'm sorry. >> you are trying to find it seems to me come you're trying to find balance here between disclosing unnecessary disclosing classified information that would harm us, and providing adequate transparency so people can understand what's going on and have confidence in the system. it's a balance. on the one hand, you don't want have no transparency and you don't want have tv cameras in the courtroom. it's an option. what might make sense is sort of a couple of different options for the court to pursue or have available to give transparency that they can figure out which is the best fit. >> i have a question for each of the panelists which is what is the role of the outside person whether they are an advocate or annika's our staff attorney or whatever when they appear before the court? two questions. one is if they are charged --
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charge to oppose everything? and secondly how do they evaluate, some to engage in the government, how do they evaluate which arguments to make? to our statutory argument, constitutional arguments, factual argument. how do they make those decisions and to guide them in making the strategic decisions they make? let's start with marc and go on down. >> i don't think they should oppose everything the government seeks. the goal of this isn't to make it harder for the government to protect the country. the goal is to make it as simple for the government to protect and have somebody going out on the other side of what the constitution balance is versus the pure need for security or surveillance. i also think they lose credibility before the court if they're just opposing everything. as opposed to getting across the message that it's important. as how to decide what cases to get involved in or what arguments to bring, i do think
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the first person to occupy the office should put a large role in figuring that out but it would occur to me that novelty is one thing that is certainly there. bulk collection is something even -- >> i want to focus on when they should get involved, once they are involved. do they argued statutory noncompliance? lawyers strategize. they partly strategize based on who the client is. how does each particular person make those decisions? >> so to try to get at that in the short answer, i would think you've got it right as to who the client is. either american public or in some places the human race who has an interest in human dignity and privacy in recommendations. their client is to offer the perspective of those individuals who can't be there to speak for themselves as to whether the surveillance is a properly
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narrowed or necessary and that maybe both constitutional, statutory. i find it hard to say today how they would choose between the but i would think they would be empowered to make both of those arguments. >> certainly i think they would have the authority and the ability to make whatever argument they thought was appropriate just like a lawyer does in any other instance whether it's in a trial court in an appellate court. i think the lawyer would be able to make whatever argument he or she thought would be possible, credible, and perhaps successful. in a unique situation, calling points to the court's attention that the government isn't and it thinks that lawyer thinks would be worthwhile. but you raise an interesting, thought occurs to me, that is, and i think the system i'm trying to propose could enable this. lawyers often when confronted with new or difficult issues talk to other lawyers and get
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their -- what you think? i think that's a natural source of a lawyer in that situation would go, so i think this is getting more elaborate. on the other hand, within the confines of what i'm suggesting i think you could also enable that a small group, just like a small public federal defender's office, they talk amongst themselves. nobody can make them disclose. n an area -- part of the problem is when these issues come up in front of the fisc, nobody has been there before. you don't have precedent and you have to think things through in a seminar kind of way. would sure -- i'm sure marc does that with his clients and others in his office. what do you think? i don't think we can describe it can do for you as to how that would occur.
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that lawyer would have as much opportunity to raise whatever arguments the lawyer thought were appropriate as terms to access to classified information. at least within that small group talking amongst themselves and sort of jointly coming up with how they go about representing. and, finally, the question yes, no, i don't think that lawyer would be called upon to dream of arguments just to dream of arguments in opposition. you could well say you have no opposition to voice to the government's request, end of discussion. >> as i mentioned, i will be brief, there's lots of issues associated with creation of this type of function, office, whatever you call it. but if anything, seems to me the one thing you would want to do is make it clear to the second people that this office is independent and can decide whatever legal position at once to take any particular matter. if it wants to oppose it can do so. if it wants to say no objection,
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whatever. constitutional issues, statutory issues, factual issues, i think have to leave it up to the people in the office or whoever it will be to decide whatever approach they will take. to have to be able to defend it spent a good time for another brief round. >> i've just got one question. i'm returning to the appeal question. i recognize some of you haven't had a chance to really research it or don't wish to comment, but i want to raise this question. we've been talking about the facts that the fisa court is a unique animal. i think it's thought of or its conception is thought of as an articles record but has some pointed out it does have some sort of auxiliary, whether it's preventive or approval kinds of function.
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here as -- i share with judge carr, the problem is that this court and evidently must and has printouts on constitutional questions, questions of statutory interpretation, which i think inevitably has to become part of our, to the extent they disclose, has to become part of our jurisprudence. so i think the appeal question is so important to me because not only i think some of the fisc counsel has opined on it, and maybe constitutional questions, always congressional research service, they are applying an absolutely typical traditional article iii standing in a situation where the court is deciding article iii
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questions, but in its original conception it's devoid of one of the most important parts of article iii courts, namely people who have an interest in the proceeding not been able to have any voice. for good reason i understand the secrecy that's involved in national security but i guess i'm trying to pick your brain if there is any way to kind of sal that question. to leave the highest form of jurisprudence, name the constitutional question, questions of statutory construction, at a point where they can't be availed of the process which every other part of the federal jurisprudence has. mainly, you know, even to the fisc, fiscr. some people have suggested a kind of certification that that's had a bonus, too.
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you've got any positive thoughts? >> i'll take a shot at it. i hate to get them back to the 2008 decision. there was a sin for the providers to challenge and the court ruled that since fourth amendment rights were at stake, the question of whether the provider could litigate those on behalf of users was a prudential standing doctrine, not a -- congress could waive the doctrine and it had been that i putting destiny provision of providers in section seven '02. so i don't see the hurdle quite as insurmountable as we agree there are u.s. persons with rights and they would have standing and someone else can litigate the issue on their behalf to the prudential question which congress can wait, not a strict constitutional want to at least that's my interpretation of that decision in my offer of help. >> and less legalistic terms because i'm not sure i fully understand the concept of prudential standing but seems to
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me there are a couple of different circumstances. one may be an instance whether, in fact, there is a target, a person who's named in the order. that's easy to you can obviously appoint. or seems to me you could appoint, that person could be designated to represent the interests of the persons affected by this order. i think that's what you're saying. they have bona fide interests and there's a scrap of doctrine that may not be applicable, you can comment on it, judge him isn't there some doctrine that says you have a situation that cable of repetition but can -- unless you go ahead and decide even though arguably the particular circumstance is now moot? it does seem to me, and also congress gives courts its jurisdiction. >> congress created the original
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disk and it innocent you might say decided that this body of people for good reason i would say couldn't be informed to become a regular participant certainly if they had terrorists. >> the more serious and -- county court played any role in overseeing article ii activities? congress, the courts and the executive have all agreed yes, the fisc is a good thing and fisa is a good thing and we don't want to push on what are the other. something i would suggest to the people who are proposing what i would suggest maybe fairly radical changes, keep in mind all it would take would be the executive saying we're not going to go along with this, go to the fisa court or review or whatever it says and only the supreme court and the supreme court might well say the whole structure collapses. who knows? that's never been tested at a don't think we want to test it. >> mr. dempsey. >> jim bakker, you said in your
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opening remarks, i hope i'm not misquoting you but i think he said something along the lines of we have gone as far as we can with the fisa court, my words, -- would you extend speed as i was referring many to section 72 to but i think it applies to section two which is the outer limits of what we currently expect the court to do. and we shouldn't think of them in some sort of super inspector general that is conducting oversight of the activity of the intelligence community. i think there's significant constitutional issues with that but i think a lot of practical issues with the. the court is not resource to do that. the judges are not trained to do that in that way. they just playe play a differene and so i'm trying to set expectations. i'm urging you to set expectations in a realistic way
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with the american people about what you can reasonably expect the court to do. that applies to congress. what can members of congress and the staff recently expected to do when it comes to conducting oversight of the agency's. and in my opinion the primary sponsor of the present-dpresent-d present of estates to conduct effective management control and oversight of the intelligence community. that's what i was trying to drive at. i think you go back to the original point if you look at the structure 72, you got the court approving the procedures, several different types, certification but not engaging in review of individual determinations and so one project after the fact that you of things that happen. i just think you've gone pretty far in terms of what you can ask the court to do to conduct oversight of the intelligence community. >> action i have no other questions on this round so i yield. i appreciate the witnesses being here. it has been very helpful. >> i did want to take you up,
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judge carr, an indication you have given us order was to talk about the legal advisers and what role they play because i think there's definitely a sense, and i mean no offense, having been a law clerk but that these are junior attorneys who are law clerks and have wondered if you talk all a bit more about who the legal advisers actually are and what role they serve? >> when i started in the court in 2002 there was one legal adviser. when i left i think there were four or five. i can't remember. they are neither law clerks nor magistrates. it's a unique role that they perform. i think i can speak for myself when i say, and i'm the author so i know perhaps more than most fisa judge going into but they know more about fisa, national city law, the workings of the agencies in any individual judge can. we rely upon them and their judgment to assist us in making
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decisions. to give you an example, take it by fisa rule, this rule, seven days before we get an application and they review it carefully. it's called the read copy. jim will confirm i'm sure, there's a lot of pushback between the legal advisers on behalf of the court and oipr. i know from personal expands there's a lot of pushback between oipr and the agencies. someone said this point they don't want to present junk because if they do we will lose confidence. it will be much more difficult unless they are straight up with us. but the legal advisers, and not infrequently, i would come in and let's say i would have x number of cases sent him a document and that number grew substantially when i was there, but i would be told this case, that case, another case and in the case are off docket.
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and it's my distinct since it was off docket, in other words, would not be formally presented to me for review because of the interaction between the legal advisers and the oipr attorneys in the agencies. i believe the legal advisers call them directly with questions and problems. that was a core part of their job, was to rigorously that the applications. and what things i think should be considered would be that the number of comedy instances in which an application is submitted for review i legal adviser, but never presented to a fisc judge for consideration, that those should be registered, recorded and published because i think that they would be, is that a large percentage? know, but jim, would you agree?
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fairly regular cases would come off docket. >> they would either come off the plate or postponed to another week while they're trying to resolve some question. given some time spent i do think it would not be that difficult to give every week to copy a number and then that keeps that number. when it comes off docket, never comes back. they decide not to present. the art incidences like that i was in because of pushback. nothing else, which show the rate of rejections in terms of the overall operation of the court is higher than the simple turndown by a judge. but i mean, to say that these are law clerks or somehow, they occupy a unique role, and they where great confidence in them. they work for the court but in a very important way, they help ensure that we make the
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decision. they very often would write a memorandum for us about some aspect. and, of course, we would sit down and read these things, and they are not two page search warrant application. they are 40, 50, 60, 100 pages. very thorough, like title iii's. every bit as lengthy and as thorough as title iii. we would often ask questions and i would call somebody and say look, can you give me this or that? and on occasion i would actually have hearings. i would question the agent and the lawyer under oath am always on the record even though it would never be public and i would make finding and i would determine that my questions had been answered. >> thank you, all three of you, for being here today. i appreciate part about we're doing here is a tipping to educate ourselves, part of what we're doing is attempting to educate other people who might be thinking about this. so i appreciate the thought and the time you put into your
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answers. >> and certainly speaking for myself, there are other questions the agency has, feel free to communicate with me. be glad answer them promptly. >> thank you. i want to follow up on something that as the government what this is about and it wasn't a full, didn't get a full answer on that panel, which is going back to the 215 bulk metadata collection and the rest standard, jim, i think you're on the audience -- ras. if it was requirement that the government submit to the fisc after the fact, the ras selector, so the phone number is now a selector and here's the paper trail, the basis on which the selector was established. what would the court do with that? first of all do you think the court to do something useful with that? would this be an actual check on the system? or would overwhelm the court? either of you speak to how that
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would work, practice. >> i don't see how it would overwhelm the court. >> would or would not? >> would not overwhelm the court and haven't excel spreadsheet, you write down the selector, right down the basis in littlefield off to the site, date, time, all this stuff. submitted to the court on the record basis your kids not to owners for the government to comply with. i think that's a real issue. i would imagine that the court would look for patterns to see if things were going along in a way that was consistent with the understanding of what they were thinking when they approved of this thing and it would be an additional check. to me, i have to say i don't see this as that onerous of an additional obligation and they do think it would be useful for the court to have additional transparency, and it seems like it's something that would give the american people additional confidence of what's going on is legitimate and appropriate. >> i would think to do that, first of all, the analogy is to
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the periodic progress reports that all article iii judges get the wiretaps. again, it's all in the record, export a. house investigation going? aren't getting anything? you're doing a good job, minimization. it does seem to me it's a function article iii judges would be familiar with performing in a similar way. the one thing that occurs to me, it seems for it to be useful you would have to go back to the particular judge who issued the prism order, whatever the order was. >> 215. >> 215, yeah. to go back to the judge, to the judge who gave the original authority rather than whatever judge happens to be that we. again, i don't know, but i suppose in time any judge would develop enough familiarity to have enough handholds to evaluate the reasonable
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suspicion in this context. >> jim, just quickly for you. there was some discussion about the back and forth between the courts and lawyers and the government. can you talk about the back and forth, what happens within the government? is there a process when then the government before the application advocates to fisc? who is involved? spent it depends on what type of application whether it's an fbi or nsa. you can have different levels of review. with the fbi to review within the field office. you would refute at fbi headquarters you have a review of the justice department and then it would go to the disk. at nsa you have similar type of review. look, the review and the meticulousness and the care that you put into these things is substantial. there is a lot of dialogue back and forth between every level, among every level of us.
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this back and forth between fbi headquarters and the field. but back and forth between doj and fbi or doj and nsa. there's a huge amount of back and forth but i almost took it as a huge amount of my responsibility to make sure that i maintain at all times the credibility of the justice department in front of the fisa court so that we were transparent about what was going on, so that the court new we care deeply about the accuracy of these applications. and we made mistakes as we did we brought in to the attention of the court. we tried really hard not to make mistakes. and so it was really the justice department, again in my opinion, doing its job executing its responsibility under the executed. constitution as delegates of the congress passed this law. president to help them take care it's our job to enforce a. that the laws are faithfully were going to do our best to make sure it's in force in the right way. i think that the system has worked extreme it well so far
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but it's cleared out and it's painful to me to see that some percentage of the population of the united states doesn't think that, and so we need to take that seriously and figure out how to deal with it. that's your job. >> thanks. in the interest of -- i would ask one final question, which is the point was made earlier that this outside party advocate amicus might have a role in compliance reviews. what role would that be and how would that play out? >> again, in my thinking about it, many times compliance, noncompliance notice is really quite straightforward but in the event that you had something that was more complex and you wanted to be really sure that the problem had been identified and addressed and would not recur. but again, i think at the very least by the judge should have the opportunity to have this
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independent counsel participate in an adversary mode with government prosecutor and conduct a hearing the way we do with the suppression hearing or whatever. and then make a decision. one would hope that the decision ultimately would be okay, things weren't as bad as they looked and it was good faith and it's been fixed. i do think there would be a role for the attorneys, my envision, participating in the process from time to time. >> two other panel members have a comment on that? >> it's not a career enhancing move for somebody in an agency to make a mistake, to get it wrong. one of the things that impressed me as a young magistrate about the fbi and so forth might the
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same kind, i grew up politically in the '60s. i had apprehensions about the government and the fisa secret court. the one thing i can assure you that has impressed me from day one from all my activities with the fisa court is that people do this work want to get it right. not just the lawyers and the justice department, but the agents out in the field. and the other thing i want to say is, i alluded to this before, i know that at least the fbi on frequent occasions was not happy with them because they were not going forward to present something that the bureau ran much wanted to. it's not an adversary relationship, but it's not a hand in glove relationship or survey was not when i was on the court. one did not have that sense, that they which is presenting anything that the agency wanted. >> i would be very careful about using the independence of this office to start getting involved too far and what would lead them to be captured by executive
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branch activity. we lather some role for adversary in this process, some role beyond what the legal advisers who sound like they're both brilliant and helpful plight then that person should retain some of that independence and they shouldn't play too many roles or positions in this so they can both challenge independent point of view and convey that independence to the american public. >> i want to thank the panel for giving us a unique insight into the operations of foreign intelligence surveillance court. we will take a break and resume at -- >> may i just do one thing that occurred to me this morning? and also before the senate judiciary committee, let's all keep in mind what a remarkable country we live in where we are having this kind of conversation about these issues. what a remarkable institution we have in the foreign intelligence surveillance court. i don't think any of the country as anything like it. and can you imagine this conversation occurring anywhere else in the world? i think we should all keep that in mind.
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>> excellent point. thank you. [inaudible conversations] >> [inaudible conversations] >> mrs. kennedy is very well known as a style icon. admiration of her fashion sense. she put an awful lot of thought in your wardrobe when she was representing the country both at the white house and while traveling abroad. she would think about what
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colors would mean something to the country i'm about to visit. so for her visit to canada she chose this red suit as a gesture of respect for the red of the canadian maple leaf. >> i really admire the thoughts mrs. kennedy put into her wardrobe, and she also knew the vantage of choosing a color or a style that would make her stand out in a crowd. spin first lady jacqueline kennedy and nightlife at nine eastern on c-span and c-span3, also on c-span radio and ..
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who and george marshall chief of staff of the army came to president roosevelt and said he can't do things we've done in the past. we have to act now and decisively and do it now today. so roosevelt went to congress the next week and said the u.s. must fill 50,000 airplanes to protect itself and all the auto companies were given projects to build engines and airplane part. ford motor company was given to be 24 bomber is a problematic airplane. it was the newest airplane they had, still in development stages, and they wanted to mass produce this airplane. so for sad i'm not just going to build parts, i will build complete airplanes. they took what had been done as individual pieces and they took
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the engine and design that hold a 7,000-inch and a massive press would knock out a thousand of these pieces that would then go on to the assembly line and basically unskilled assembly workers with a little bit of training to assemble these airplanes. between january to june of 1944, 35% of the engine bombers built in the united states were delivered here at willow run and that was one of beloved factories building the b. 24 bomber. >> saving a little piece of this plant was so important for the story is just beyond words. i can't describe the feeling we will all have and the big smiles once we pull this off. we did something here in detroit that wasn't done anywhere else in the world, and it literally saved the world. we did it right here.
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saturday afternoon on c-span2 and sunday at 5 p.m. on c-span three. now or from the president's privacy and civil liberties oversight board examining changes to the nsa data collection and surveillance program. this discussion focused on congressional oversight of the nsa with remarks by former house intelligence committee ranking than her jane harman. she had the woodrow wilson center. she's joined by other witnesses from academia and formal council of the house judiciary committee. this is about an hour and a half. >> i will be starting the final panel which involves academicols congress. we are pleased to be joined byid jane harman of the woodrow
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wilson center and former member of congress. warren who is a research professor at george washington university lawd school, stephane powell on the strategies, former house p judiciary counsel and federal prosecutor, eugene c spafford center for education research information assurance is in the security at and stephen vladeck associate dean at the american college of law. each of the panel members i understand is free to make a brief statement and then we will do another round of five minutes questioning on the panel. so congresswoman, if you would like to start. >> my apologies for being a few minutes late. but i'm delighted to be here.r myself one of your grandmothers. i was a principal co-author of the intelligence reform law in
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2,004 which established you and one of the tragedies i think that history will record is you were not fully functioning until may of 2013. that is about eight and a half years lost at a very critical mission. let me say the goal end of the law certainly was to have a group inside that would make certain that privacy and security or that liberty andrtai security were reinforcing values in the policies and practices that we established under the law. and if ever that function were needed, it is right now. it is unfortunate to me that you are one of the best-kept secrets in washington. i know that you're making anve effort to get out here and i commend you for that, but the need is urgent. you among the different groups now looking at some of the i
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policies and practices i thinkn are in a position to make sure from the inside that we are doing the right t let me make two other points. one, i was in berlin germanybern this week earlier, no last week. a week ago today at a dinner of top policy types and think tank leaders , types think tank leaders, and business people. all of whom were shocked and horrified by the revolution -- europeanns revealed in newspapers. when i told them that i was testifying next week, they looked stunned. and they said, gee, that is wonderful. i hope that a group like that will also be in touch with foreign governments. so i put that out there. i'm not sure if that is in the mandate or it is not, but it might be interesting to think about connecting to those folks and may be forming some common cause about ways to look at the
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practices and procedures of different countries. finally i would offer my own observation about all this, which is that we need -- this isn't our mandate, but our government needs crisis management 101. it seems to me as a recovering politician, that when bad stuff is coming your way let's just imagine someone named snowden has taken stuff out of the government and its getting out and figure out the frame and context and to talk about what else can come out and what it ended just free advice again from somebody that spent 17 years in the united states congress, some crisis management function at the highest level of our government. i think it could be helpful along with a privacy. i'm delighted to be here.
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i don't know that my testimony will be as technical as my well-qualified colleagues, but i've been in the game for a long time and i passionately hope things turn out well for our country and that we have both security and liberty to look forward to. >> thank you, congresswoman. professor teresa. >> thank you for the opportunity to testify this afternoon. the fisa statute is premised on a search for and model putting article three judges in the position of judges evaluating search warrant applications. and that model isn't working because the search warrant model is premised on the judge serving essentially a ministerial function. when a judge reviews a search warrant application, the judge is looking for probable cause, particularity that isn't trying to conduct a comprehensive overview of whether that is being applied correctly, how it should be interpreted and with the constitutional implications might be of the warrant is issued. that doesn't work in the
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high-technology area because technology simply is changing too quickly. judges are therefore being asked to resolve. the difficult issues of interpretation, which they are just not competently equipped to answer in the context of an export a application such as a search warrant application. and the very proposal that we would discuss earlier this afternoon at the fisc panel about the various ways that fisc could be restructured to nick mt him in the veto amendments to the model and the special advocate is one approach encouraging disclosure of interpretations with another approach and both of those i think are interesting and important and promising ideas for how to reform the foreign intelligence surveillance act to deal with new technologies. let me suggest two other approaches, one which has been discussed and implemented and the other which has not been. one approach is how to find that provision. having the governmen governmente
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last for a certain number of years and then expire, putting the burden on the government to seek the renewal of that power. i think sunset provisions which were originally designed to have that sort of act of testing time to see if the government still needs that power a few years later. today, instead of new technologies, is a way of ensuring that the government can go back to congress or rather have to go back to congress to seek approval for any new interpretations of the law. so combining the sunset authority with disclosure of interpretation of the fisc i think is one important step. another approach, which has not been suggested so far, would be a rule of lenity for the foreign intelligence surveillance law. you may be familiar with the rule of lenity in the criminal context with th but the idea isn interpreting a criminal statute that judges should adopt the narrow interpretation of the criminal law, and that requires the government wants to adopt or
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have a broader interpretation of the criminal law, they have to go to the legislature and have the legislature enact it. the idea being that the law is ultimately up to congress, not up to the court during a rule of lenity for the surveillance law can serve a similar function. if the idea would be if the government goes to the fisa court and here's an interpretation of the law, if it's a close call the default should be for the fisa court to reject the interpretation and tell the executive branch they have to go to congress to get the congress's approval for that interpretation of the statute. this would force the executive branch to go to congress and not try to seek approval of new programs from cords that are poorly equipped to analyze the questions here especially involving the desired ability of the programs. effectively, the sunset provision and the rule of lenity working together with disclosure would force the executive branch to keep going back to congress
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as technology changes come in to have congress consider whether to approve or disapprove any new surveillance program he thank you. >> thank you, professor kerry kerr. >> thank you. it's quite an honor. putting on my hat as a former staff or i'd like to raise to process or transparency points that i think relates t relate tf the discussions on both of the earlier panels. he heard on the prior panel the idea that the fisc having had or currently having a mechanism to seek review of outside technical experts. i think that is an excellent idea, but it is an equally important resource for staff members and members of the committees. in my experience working on the reform of the electronic medications act, which was not done under a sensually working
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with classified information, myself and my colleagues were able to contact outside experts, professors at universities, people who had worked in the telecommunication industries for decades in order to get the view of current technology and its capabilities and where the technology was going in the future. of course we heard from the government also and it shouldn't surprise anyone to hear that the government views often did not 100% comport with the views of these outside experts. what i am saying shouldn't be either surprising or seen as a criticism. the government of course is an advocate. it has a very important mission to do, and it's going to present the views of technology in a way that best represents its position. but what these outside experts could do in addition to often getting a different view from government is hoped the
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committee look towards the future, to understand where the technology and its capabilities were going so that in the course of trying to write statutes that would become obsolete with the next new iphone model, we have the necessary information for the forward projection. second, and at this point was more to the discussion on 215 come and something judge wald you raised about things that have been set in different press outlets by different experts regarding the fact that the government interpretation, vis-à-vis bulk collection was idiosyncratic. certainly not something that even people who perhaps were experts in the surveillance law could read that statute and say i could see how the bulk collection authority would be operating under the statute.
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what i would like to raise is a problem that occurs from a process level as a committee staff member, especially on the judiciary committee. we are certainly we hear classified information and we need to have briefings behind closed doors. that committee staff members and members interact with nongovernmental stakeholders who have real interest in how these statutes are written and how they respect the privacy interest of the general public. when you have a situation that a governance legal interpretation essentially is hidden from public disclosure, the dire law that must occur between the staff and the committee members and these nongovernmental constituencies frankly can be very dysfunctional. because when you discuss why you want to make a change to a
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statute that are not able to talk about what you think the change will do, it can have the effect of having those nongovernmental constituencies ironically argue for changes in the law or reject proposals that are not in their interest. i think that raises a very problematic process question that calls into question the integrity of the legislative process with respect to legal interpretation of statutes that must remain essentially hidden from public disclosure. thank you. >> thank you, ms. pell. >> i study systems for many years and find ways where they can be exploited or where they can be bolstered, and i would like to present to high level that the systems viewing this. the first is we have heard from many people today and over the
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past many months about how carefully this is controlled and vetted. the information is closely guarded, and we can perhaps take that as giving and realize that we do have a number of people that are working very hard in the nation's defense and in the nations interest to you to the concerned with privacy, however, is if those system are constrained and controlled with within a very small private, closely held group, then it is possible that under political circumstances or stress, they can swing out of control beyond what we intended. this is by no means unusual given the country's history. we look at things like the alien and sedition act and the japanese internment in world war ii, the investigations, the mccarthy hearings and president nixon's enemy list is just a few
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where government systems were used for political gain or aims that were later used the veto ruled unconstitutional. what we need to do is look at the point at which this can be uncontrollecould beuncontrolledt which we could observe to make sure that the system cannot be subverted. we are lacking in the transparency and the openness that is necessary. we don't have the adversarial capabilities. the fact that people that have these orders served against them cannot talk about them, cannot bring that up before a court or all considerable problems in terms of righting any wrongs or oversight. that should be addressed. in particular, we have heard how some of our elected representatives are unable to hear all of the information about these programs to engage in their staff and have conversations with each other about some of the issues involved. to my knowledge, we have not elected a new terrorist to congress at least not the kind
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that we are looking for. we are not in a position where we have terrorists in the judiciary or terrorists operating our isp. to prevent those individuals for helping to safeguard our privacy and constitutional rights come it is really counterproductive to the interest of the nation. so i would suggest that you look at that as one thing that might be considered. in general, i believe that classification is overused. anything that is classified should be classified only to protect the safety of the party or operational efficacy. it shouldn't be used to hide things from the american public. things that are classified when they come out. the american public should say it is too bad we lost that capability that they shouldn't be ashamed of whatever government is doing. we have seen instances of that i believe in the past few months. the second comment i will make very briefly about the systems is more technical. i circulated it to you a set of
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fair information privacy practices that have been particularly the u.s. public policy counsel of the acm. these help govern the privacy and databases. i would ask that you look at those as you consider possible changes. the more of those that are upheld, the better we protect the privacy of information. and the more information we collect, the more likely we are to collect noise, particularly if we have that information stored for a long time. in any system, the more that we try to avoid false negatives that is missing cases of things we are looking for the more likely we are to generate false positives. and there is a concern as well for the american public that in the process of trying to be sure that we stop every terrorist threat we cast the net that is too likely to engage those individuals who are involved in unusual, but not illegal behavior. and i will be happy to answer questions later. thank you. >> thank you professor spafford.
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professor stephen vladeck plexus panic at the pleasure to be here. given the latest of the hour and the questions i'm going to try to be very brief. we've heard a lot already to be about the idea of a special advocate. so i thought i would focus my short opening remarks on that proposal. the members are familiar with the congressional research service report that was i think disclosed last week about constitutional concerns with the special advocate and i thought i would briefly address the three major ones that the report raises. the first report suggests the special advocate raised problems with regards to the appointment clause and how that office is set up as i think that this is a non sequitur. i don't really think there is any current proposal including the latest bill that would actually constitute a special advocate as anything remotely resembling the supreme court referred to as an officer of the united states in buckley versus valeo. i think this is a bit of a red herring. the second bucket of issues the
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report raises i is concerned abt advertisements in the fisa court. of course this has been a structural concern and fisa since long before the current controversies. indeed the judge silberman when he testified raised this concern of a constitutional objection to the fisa. i'm happy to elaborate more on why this is a problem. the only relevant point for now is a special advocate would not exacerbate any advertisement concerns that currently exist. that is to say there may be adverse and concerns under 702 or 215 where fisa is currently constituted having an adverse party only should ameliorate those concerns and not make them worse. instead, the hardest issue raised by the crs report and the one that is the biggest head scratcher for the advocate is the field question. the supreme court just decided this summer in the proposition eight case that a party must
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have a direct stake in the outcome in order to appeal an adverse decision by the lower court at least within the article three system and i am to be confident the fisa court is part of the article three courts system and obviously i think some of the current proposals would not invest the special advocate with such a direct stake in the outcome. so it seems to me that there are two responses posed by the decision. the first is to create a direct stake in the outcome. that is to say to actually have a special advocate not just represented from an amorphous undifferentiated interest, but to actually represent u.s. persons whose communications might be intercepted pursuant to the surveillance been authorized. that might raise policy questions that are difficult to think about. certainly we have precedence in our legal system for such sort of separated representation among guardian items are a good example, class counsel in the rule 23 class action. even for example tahiti as lawyers for the guantánamo detainees. we have access to classified
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information that cannot be shared. so, one possibility around the problem is to create the direct stake. the other is to avoid it. so i suspect there's been so discussion among the board about the idea of certification. it's one possibility because of the fisa court certified. it's particularly difficult legal question to fisc. this could be modeled for example of the supreme court statute. 1254-2 that allows the corporate now to satisfy certified. and whether or not a party is asking for such certification. another possibility would be to borrow an example from the bankruptcy context and actually bifurcate the fisa court decisions into those that the court is allowed to render the final matter those could be cases that providing the cases of law at the reauthorization cases in which case the fisa court would be empowered to act finally and those could only issue a provisional report in the recommendation that actually
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have to be confirmed by the fisa court of review on appeal. that's how the bankruptcy court system works right now at the core and non-core proceedings. it's another way to get around the problem. the larger point into the night .-full-stop it's th is the appes question shouldn't distract from the advantages of having some kind of adversarial participation in the fisa court itself would bring even if we can't ultimately sold how we allow them to appeal. thank you very much. >> thank you professor vladeck. >> i'm having the same problem that one of our panelists had earlier today. i want us to go back something that the panelists discussed and that's the issue of congressional oversight. i think you've seen an evolution over time in terms of congressional oversight. you see it both with respect to the addition of the judiciary committee and receiving reports, exercising and oversight function in addition to the
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intel committees. and you also see it in a movement away from a traditional full uniform standard up to the hill to specific reporting requirements. the range of specific reporting requirements. my question is a general one, which is do you think that we are in the right place right now in terms of congressional oversight? and i would separate between an ongoing oversight function and the need to legislate or reauthorize and a sunset situation or should congress be taking a fresh look at how it exercises its oversight capabilities and going left to right at this point might make sense, my left. >> it took me a while. i think it's a great question into something that has to be revisited. but i was there. i was working in the carter white house when fisa was passed
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in 1978. i wasn't part of the ban on a bipartisan basis that crafted the law. but i was impressed o unaffected basis of fisa is a robust functioning of all three branches of government. executive branch policy reviewed by the fisa court and overseen by the congress. that was the deal. and that worked very well, my impression, until 9/11. and then the events of 9/11 and also the fear of ongoing 9/11 caused the bush administration to field that we needed a dramatically enhanced response or aggressive outfit aggressive approach, not just response. they ignored fisa for a couple of years which i found out afterwards only i was a member of the gang of eight and the congress amended fisa to catch up with the technological change
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and fisa and other patriot acts and other things that have been mentioned, certainly the executive order 12333. what is my basic answer to you? i think robust oversight is crucial. i think it should extend beyond the intelligence committees. although i think they have a special role because they have is to show understanding or approach. i hope i did of what the challenges are. but i think because of the reach of these programs, all members of congress should have some role in oversight. that's number one. i think the challenge is to changes in technology. others on the panel known more about this than i do but it's hard to craft either a law or oversight regime that can anticipate, you know, what i pad or iphone six is going to look like and what capabilities it might have that the iphone may
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not have but what else is going to be out there that we can imagine or i can't imagine. remember, i'm the grandma. these kids can probably imagine it. it's been just briefly, because this is a great question in large part outside of my expertise. the one issue that matters a lot is whether what is the reference point that congress is looking at the question from? so if there is a sunset provision or if the fisa court is taking conservative interpretations of the law, the executive law has to go to congress and get something from congress, has to persuade. and when the executive branch is in the position of needing to persuade, that is going to lead to better oversight and the opposite. so, it's if the fisa court is taking an aggressive court on the law it is for the
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legislative branch to give the kind of oversight that needs when it is effectively trying to say okay, what might be going wrong but nonetheless has been approved by the fisa court? the difficult position for the legislative branch to be. so, one of the benefits of the sunset provisions and the rule of lenity idea is effectively it means that the executive branch has to go to the legislative branch and make the case affirmatively. and that is going to lead to better oversight. >> i will sort of take the end of what professor kerr said. when the executive branch has to come to the legislative branch, the legislative branch has to stay engaged. if there are continual reasons to view things because they are sunsetting or the executive needs to ask the congress for something on a regular basis, the staff are going to stay engaged, the members are going to stay engaged. it's going to be a priority. and i think it needs to be a
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priority. >> thank you. >> to follow up on the congressional oversight, those of you who are here for the previous panel heard me ask about the proposal to have a return requirements to the government would have to ask what the fisc was doing after the fact. so it's not congressional oversight, it's judicial oversight. i have a somewhat cynical view that the requirements are not particularly effective. oversight because they impose massive, massive personal burdens on the executive branch and then no one ever looks at it. so, that was the reason for my questions earlier. i would have the same question about the congressional oversight. if very granular there's already a lot of congressional reporting under fisa and if it were increased even beyond what it is now to be included some granular reporting, what with the congress do with that information and doesn't actually enable a greater level of oversight and it already exists?
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i guess that would be for the congresswoman harman and stephanie. >> if i were not an optimist i wouldn't have served in congress for 17 years. i think the congress is capable and i think the members are capable, not equally capable. the kennedys are capable and it's a tragedy that we seem to be basically ignoring the regular order. the committee process in at least this congress and the prior one but i think the intelligence committees and other committees of jurisdiction could staff to do this while. even the granular stuff. there are very smart people sitting right here who could be hired with a focus on this and there are vendors who really care about getting it right in both parties. obviously the public is now intensely glued in and once the privacy and civil liberties commission becomes a household word, you're going to keep attention focused. so i think this is suitable. guess it will take a commitment
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of resources, and not just the national resources but the brain cells to do it right and i think the challenge is going to be that the goal posts keep moving. but it is going to change because the capabilities of both our technology and what the bad guys can do are evolving. and keeping on top of that and understanding what that means, and then understanding what the requirements are, not just what does the law say, but who should we be focused on and how should we be giving this. and again, it might just orin -t be just bad names and phone numbers and a bad e-mail addresses, it could be something in the cloud that i cannot even imagine or something beyond the cloud. >> obviously you want reporting requirements or information to be useful. but without it, what can congress do? i found one of the most
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challenging aspects of reform of criminal investigative authorities was just getting accurate information about how technology functions, about how often the government reviews certain types of authorities. those kinds of metrics for dedicated staff and members and they are there is very, very useful. but if it's not there, where is your starting point? connector you have a view, any of you, what type of information isn't currently provided that could be useful? >> i wanted to add to that but t reporting is not sufficient because with the technology and with the complexity, i can craft a report that says everything and means nothing to the people that read it because they don't have the background. unless we allow those with expertise in the area and time in office, and this is largely a
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staff function. the ability to ask questions to be brought out to either the courts or to elected representatives are you today aren't going to actually be able to understand what's going on with some of the very complex technical issues. and so, i, again i come back. i have this concern that reports have staff -- kept staff to be brief and to discuss these things with members. many of them have background in the law or education or other issues where they don't understand the technology and they depend on the staff to help them to get those bits of information. >> professor vladeck kwak spinnaker thinkers also an incentive problem. we can all i think agree that everyone is working with the agency that has the best interest out there but the problem is that when this is all happening in the dark i don't know what the incentive is for the members to go down and spend hours and hours going through material that they may not even
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understand. and i think last tuesday brought this up quite sharply. when you have the chairman of the house intelligence committee say it's not a violation of privacy if we don't find out about it. i think the question is how do we change that mentality not just among the popular discourse but among the members who are tasked as an oversight function and purpose tha part of that ist better reporting an opportunity to actually engage the reporting but also some mechanism through which it is more interest to exercise the oversight as to keep themselves under the rug. >> can i just add one thing because i thought your question wasn't just about reports that oversight. where the reporting enables the oversight. that oversight is much more than reports. oversight can be offensive, to it can be asking questions requiring people to come up in the report reviewing materials.
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back i am told that mike o'neill who was the chief counsel of hipsi read every single fisa application and that is pretty darn good oversight assuming he knew what he was reading and he was a smart guy. that would be impossible now. there's too much going on but it seems to be that the right people, motivated in the right way with adequate resources and part of that is a determination to focus and i think, don't sell the members of short. of course why wouldn't i defend members but don't sell them short. some of the members are keenly interested in this and can make it a priority to focus on this. i think that there are members who have been and who are and will be very converse and with intelligence and know how to do oversight. >> professor earlier you said
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that there was a concern that the more information that you collect to avoid false negatives the greater the risk of false positives. one could read that as a critique of the act model the administration has advanced in section 215. if that's the case do you have an alternative for accomplishing the same goals on the one option that was discussed earlier today is the access to information as a provider level for the federated search model to make similar? what are your thoughts on potentially i guess the technological solutio solutionsd the problem that you seem to be concerned about. >> it's difficult to give specific examples without delving into the specific systems. i will say that in general from what i have seen in the open press the theory is to collect all of the information in case it's useful and then mine all of that. the problem of air i there is ie to collect huge amounts of
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information that have no bearing or lead to false result. it can obscure the results because it introduces noise. the analysis uses the three hop collection. what i have seen, and i do not have personal experience with this, what i have seen mentioned is that the two hop analysis is much more accurate. the three hop analysis begins to bring people in the car rental agencies and hardware stores and pizza places and introduces more noise. it would reduce the amount of searching and the data that is necessary and some of the concerns to have a more tailored approach. but fundamentally at its heart it is a question of where are our values here. is this such an approach that we have to collect every bit of information that goes across every communicational line in hopes of catching every last person who has harbored a
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thought? somewhere there needs to be a little bit more balance where we are willing to use traditional police intelligence methods for safeguarding ourselves and not try to head everything off in regards to helping with privacy. stomach professor vladeck come you talked about a model to get the appellate review in the foreign intelligence surveillance court of the bankruptcy approach which is that lower decision isn't really final until it is reviewed. how would you square that with the exigencies of the surveillance needs where having a bona fide old order is to engage in surveillance could actually delay the critical surveillance activities while the review process goes forward. >> i think it actually wouldn't be that difficult. you could sort of just reverse it. so the idea would be the interim order by the fisa judge would be sufficient to allow the government to act on an interim
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basis. review and finalization by fisc. that would be to sort of solved those problems and allow the government to act once they make the initial judge and allow for the subsequent retrospective review by fisc were without running into the -- in the bankruptcy context, the court has the power to issue the independent confirmation of the report. so i think that analogy would work it all the way out. >> when wha would you have the supply -- we heard the vast majority of what the fisc does is raise requests on the technological issues. we have a bankruptcy model approach on every single question of the fisc and how would you decide which it applies to? syndicate is to devise the classifications of the model would have been called core proceedings from the non-core proceedings. court proceedings might be analogous to the fisc cases the
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court does have the power to act finally. and without any appellate oversight. and it's only in the non-core proceedings in the bank of the context you have that review. so it seems to me that you could have some trigger some of the proposals include any significant question of law or significant approach or. there are ways to sort of make the threshold work and it could be whether it is a novel interpretation. it could be whether it is application into a new set of facts. the devil is in the details that you could find a way to agree on a sort of trigger that what sorts the cases into those categories. >> if you can get to the fisc review how do you get to the supreme court? the supreme court does seem to raise the controversy question of going from the fisc review we don't have that lack of finality that you've had from the local report. >> i think this up in court
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issue is still a problem. you could presumably sold its not the same way but in analogous way. it's already the law under 1242 that the circuit courts can certify the questions to the supreme court at any time. so including the fisa court moving forward. and then presumably that would provide the mandatory review or the automatic review but it would also allow fiscr that was a sufficiently important question to raise the justice attention. fiscr to d had been ascended toe supreme court and they could say we don't care. the supreme court hasn't answered a certified question since 1981. i think it's to ignore fiscr but at least fiscr would have the ability to try to get their attention. >> thank you. judge wald? a. >> there has been a lively debate on some of the upside common to 15 as to whether or
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not it is sufficient to have let's say the representative democracy model for big bulk programs like 215. that is, we have elected our members of congress. if they set up the system for review. for something broader and in that sense, people who just have to live with that. of course one problem with that always is that even if you adopt this, theoretically the people's resort isn't to elect the same people if they don't like the same people that if they don't know about the program that's in there out of that particular exit strategy is not with as much. but the deeper thing is is that the right model or is the model which some people have written
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about that when you get to a program, not the individual warrants, but when you get to a program that really encompasses a large portion of people and inevitably a large portion of people who won't have any terrorist implications afterwards. is it not necessary even at the cost of a little risk to the possible type of security for that to be disclosed not in its operational details, but in the fact that yes we do have a bulk program that goes to xyz? i'm wondering about your thoughts, jane, representative harman, and stephanie and anybody


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