tv Politics Public Policy Today CSPAN October 28, 2014 3:00pm-5:01pm EDT
the records to does not have record exempt states. they do not use the documents in any operational mode. in any way comparable to the agency and any control over such documents consists can solely in cataloging and preserving them, not unlike the warehouse. this makes a tax analyst case and after all that test from the first literature and employees of the possession. in the text, we said that the tax analyst cases are divorced from the key objective which is revealing to the believe and now federal agencies operate.
they don't expose the operations of the archives or narrow to the line of public scrutiny. i want to move on to the exemptions and i'm going to focus on two of the exemptions. exemption and exemption six. exemption five disclosure documents that would be available to litigation with the eajz and encompasses the presidential communications privilege otherwise known as executive privilege. there is a case dealing with executive privilege and the center for the effective government versus the u.s. department of state on page 13. the mayor of the d.c. district judge concluded that the
privilege not protect from disclosure president obama's collected pp d.c. the presidential directive as formal identification to agency heads of a periodial decision in the field of national security and requiring that agencies take some form of follow-up action. they call for the development as a core pillar of american power and provides specific policy on implementing that approach. the judge conclude said that it was a nonclassified directive that has been distributed and used by the recipient agencies by the decision. the judge's view has policy
decidance to be implemented and ppd 6 had to force the law and was the equivalent to an executive order. the judge reasoned that the availability of the presidential communications privilege turns on the need for confidentiality to ensure the advice and found no such need, particularly given that ppd 6 does not involve the presidential doing. and the court went on to say that based on the reading of the document the judge found it was forward looking and didn't reveal the president's deliberative process. in short, his final decision did
not. there other cases involving the deliberative process privilege and i will leave those to be covered by the materials and given the shortness of our time and i want to move on to exemption six. it allows to withhold records. this often raised in conjunction with 7 c that said that with regard to law enforcement records. the two cases this year i want to focus on, the union leader case and the case called gillman. the first union leader versus the u.s. department of homeland security, the summary that starts on page 22 of the materials, the first circuit held that the names of aliens with criminal records arrested
in immigrations and custom it is enforcement or ice is held to exemption 6 and 7 c. the first circuit panel held that they had a coginizable interest rejecting the argument that no individual has a reasonable expectation of privacy regarding public arrest by government. nevertheless the panel found the interest continuing given that convictions and arrests for union lead er they noted that oe of the arrestees they kwkded of
criminal trespassing in 1993. they explained that the union leader point to evidence by a reasonable third narn ice had acted in handling the removal duties. they concluded disclosure of the yoon yon leader to investigate public records pertaining to the arrestees of convictions and unless bring to light the reasons for isis in removing these. on 25, in that case ordered the release of the property would require for the border.
a law professor saw the names and addresses of a landowner who would potentially be affected by the border wall as well as correspondents of officials about their contacts with landowners. the legal environmental indigenous community and other impacts. and also another exemption. the judge concluded that the individual landowners had a privacy interest for three reasons. first disclosure would expose landowners or might expose them to an unwanted media contact.
the evaluation and the financial situation. some of them reveal specific statements by some of the landowners however the judge found what a great public benefit of the government's construction of the wall. they reveal the identities of the landowners might shed light on the impact of the wall and placement of the wall and indigenous communities and impact on lower income minority communities. that is often an issue that we are talking about with imminent
domain issues. the judge actually surveyed cases involving the application of exemption six and concluded that unbalanced if the requester can show that there is really some substantial public interest in disclosing the information and generally the case will come out in favor of the requester and disclosing the information rather than withholding it on privacy grounds. they have financial information implicated such as letting them deal with government benefits. i want to move on to the verse
for you. that's a lot less frequent and an interesting d.c. circuit case. the usda is on page -- it's on page 34. the summary of that. and the suits are as you know, seeking to enjoin the government agency from release in documents that they exempt from disclosure. they held that the ah, sd had not acted in releasing information that dog breeders committed regarding their gross revenue and business. they asked for the number of animal purchases and sales in a
given year. the humane society sought copies of the forms 7 thousand 3 for all the dog breeders. they brought a reverse suit claiming that they should have been exemption four. the court noted that the usda reasonably concluded that the request of information was unlikely to cause competitive harm. they determine the dealer's current prices for a particular breed. with respect to exemption 6, the court concluded that they had
properly goupd a nonnegligible and limited gross income figure. a significant public interest in the release of the information. in particular, the relos of the information would help fulfill the statutory obligation to charge the fees and allow the public to properly assess whether fees would be charged in accordance of those regulations. they found that the usda's balancing in favor of release was reasonable. interestingly the court rejected the breeder's suggestion that a public interest in disclosure of form 7 thousand 3 can disclose only where there is agency in propriety.
they referenced the case and the court acknowledged that the showing might be required when they seek documents that intrude on privacy. in this case and the reverse case, the plaintiff must show that the government was arbitrary in concluding that on balance. the public ways of the intrusion on privacy. let me talk about a couple of cases youthfuling government information and acquisition of information that are not the cases. so the first is wisconsin airline ownershipration versus hooper. in which the supreme court liberally constewed the skroep of protection offered by at statute that confers immunity
for suspicion behavior. the a tsa immunizes airlines and airplane employees from liability for suspicion behavior so long as the report is not made with actual knowledge that the disclosure was false or with reckless disregard of the disclosure. with the articulation and they clearly referenced in the a tsa standards. the court held that even reckless statements can give rise to liability only if materially false. the statement would have a different effect on the mind of the reader or listener from that
which the truth would have produced. for purposes of a tsa immunity, they consider the effect of the alleged false statement on tsa's behavior and thus a falsehood's material for ata purposes if a reasonable security officer would consider it important in deciding upon the appropriate response to the supposed threat. that was an unstable pilot. they had been terminated. an expression of concern about whether a plaintiff was armed. they were not entirely accurate. they were not materially false.
the next case i will address is a case that the court is granted on. they will be hearing the case this term. it's maclane versus department of homeland security that interprets the whistle blower protection act. they prohibit them from getting the employee on the base of the oomphee for which they believe evidence is a substantial and specific danger to public health or safety. here's the key words. if the disclosure is not specifically prohibited by law. so the first circuit holds that maclane is the whistle blower's disclosure, prohibited by law and thus not protected because it violated regulations issued
under the transportation security act. the a tsa. they direct the secretary of transportation to prescribe regulations prohibiting disclosure of regulation if they decide and among other things would be detrimental to transportation safety. he leaked a text cancelling air marshall missions on the flights to las vegas. even though the time the department was concerned of hijacking plot. subsequently when the plane leak something else and the employee figured out, his identity. the department discovered he had leaked the first information
about the las vegas missions and they fired him for disclosing sensitive information. they concluded in the absence of the parties that to fall under the wpas prohibited by law, they must be prohibited by statute rather than regulation. the court noted that the a tsa itself merely empowers the agency to prescribe regulations prohibiting disclosure of sensitive information. it doesn't do so directly. that said, however, the court noted that the a tsa does direct the secretary to promulgate regulations pursuant to specific criteria and for example, the only information that would be detrimental to the security and according to the court viewed a
tsa falling into the middle of a continuum. a continuum and prohibiting disclosure that fall under the wpa and on the other poll, statutes in which congress delegates the authority to administrative agency without cirque um scribing the agency's discretion. the court concluded that given the clarity of the language in the wpa and the legislative intent behind the wpa's specificity requirement, the parameters set in the a tsa were not sufficient to consider it a statute falling within that
prohibited by law. there more cases discussed and we have time with all the presentations. >> thank you. >> thank you. i would like to ask the c-span editor if he would clip out the circumcision line. we don't want bernie's students to be reading that. the other half of this subject is presented by harry ham et. i have to personally comment harry. harry is one of the heroes in the field who has been there, done that, written about it. as editor of reports for 20 how many years? >> almost 30 years. harry and i are the hearty perennials. on the newsletter side. we are honored to have with us harry hem et, the editor of
access reports. harry? >> thank you, jim. i want to start where jim's first remarks about the snowden case. there were a couple of cases this year and i'm not going to describe them, but you will see how the offense ends. a number of people who decided to sue the national security agency on the theory that since they collected everything, they must have records on the individuals. so there were several suits that i read and i think i suspected that there dozens of suits in the pipeline on this issue. it was an interesting theory and of course generally speaking, these people were really just the one person. the guy named glen carter in
canada. it was clear that he thought the nsa must have records on them. to me that was an interesting aside as far as the snowden connection is concerned. what i'm going to do is talk about some procedural issues and then end up with a couple of exemption issues as well. the first case i wanted to discuss is a case called state of oklahoma versus the environmental protection agency as a district court case from oklahoma. all these cases, the cases are in the summary that you have been provided with. this is a case in which 13 attorney generals had filed suit against the earthquakes pa for records pertaining to the agency's non-discretionary duties to take action under the clean air act. the agency responded to the
request and the attorney general's request for a fee waiver by saying no, you can't have a fee waiver and it's too vague and we are not going to answer to it because it's too vague. one of the environments is that an agency request has to be specific enough that somebody who is reasonably familiar with the records would be able to understand what records you are talking about. frequently the agencies are faced with that are often too vague. that doesn't come as any surprise. what the district court judge said was that the discussions with any interested organization or others have the scope of application of the epa's non-discretionary duty to take actions under the clean air act was too vague.
the term certain action is not defined in any way it could be limited. the professional employee would be left to guess what hundreds of actions the administrator has and the duty to perform. the plaintiffs were interested in. what the court suggest and what seems like a common sense callaway of dealing with the issues is that the parties get together and the epa and attorney general get together and thrash out a request that was narrow enough and understandable enough to respond to it. i wanted to comment that this is a relatively common problem and it's a problem that affects both is thes and requesters often times don't know much about what the agency's records are like. they tend to make rather broad requests and often times the
requests have to do with certain matter that they assume probably falls under the agency's jurisdiction. so often times they are making broad requests and agencies are then faced with trying to figure out what in the world is it that the person actually wants. way to deal with it and we talked about this for aimings and it was ultimately cotified in the amendments of 1996. it was for the agency to come back to the request and say i don't understand what your request is asking for. if you are willing to narrow the request and hear suggestions, we can handle the request more expeditious low for you. the trade off for the agency is that the request gets narrowed and more manageable and the bone
is that they will respond to it more expeditiously. that often times still is not. it doesn't happen in practice, but that's kind of where the statute is supposed to be. i have a friend who is a litigator in the initial security area at the moment. he has been fighting with the cia on several occasions as to whether he had asked for records that had the modifiers like pertaping to or related to and they said that's way too comp katd for us to deal with. of course they didn't bother to ask how he would like to narrow it. i would say that the agency won that argument. that's not necessarily a losing argument by any means. the next case i want to talk
about is actual low a case brought by alan's organization. the electronic privacy center against the justice department. what they were asking for was the department of justice's national security vision had reports that they submitted to congress pursuant to the surveillance act summarizing the registers and the trap and trace devices. they asked for expedited processing and the agency gave the next processing a fee waiver. nothing more happened and they filed suit. what epic wanted was for the court to issue an injunction requiring the agency to respond within 20 days of the court's
order. the judge in this case is an obama appointee, brown-jackson. she looked at the effect of the case that we discussed last year and we talked about it more again. citizens for responsibility and ethics in washington with the public interest group here in washington verdict the federal elections commission. in that case the d.c. circuit ruled that an agency has to make a determination on what it's going do with the request within 20 working days and what a determination entails is some degree of specificity of how the request is going to be handled. and also the right to appeal if they so desire.
and the crew had sued when they felt that the fec's determination and what if they thought it was not adequate enough. indeed the d.c. circuit court said it was not adequate enough and what the crew got as a result after 20 working days when it's over. they got the opportunity to go to court. that is constructively exhaustion of remedies. the plaintiff has an absolute right to go to court after 20 working days. it's not clear that they had much other remedy. anyway, judge brown said that this case, the crew case basically stood for the
proposition that once you had not responded in time, you got to go to court. and that was it. they argued largely because of it. they won this in similar situations in 2006. they had not responded on time and that gave them permission to continue and let the case process. jackson basically said well, now that the crew case exists, crew versus fec, basically the only remedy that you had was to go to court and get them to be more aminable to your argument. you don't get to force the
that. they put to respond to another piece of litigation. she agreed that and much of this work had been done and she would accept that as responsive to a request. one of the things that they agreed to do in the separate litigation to not go after e-mail attachments that required the e-mails. they said i want the attachments. the judge said it again. you basically have restricted by the agreement you made as far as accepting that and this is a strategic decision that plaintiffs frequently make to
get records that they know they can get for other records. this is experienced and basically they got stuck on the situation of having to accept something she didn't want to accept in the short. the other case i wanted to talk about, there have been interesting decisions in the last year or couple of years. exemption three is a provision that allows other statutes to meet the criteria of the exemption to be considered as restrictive provisions and provide confidentiality and
applied through the exemption. in this case this is a case with the department of agriculture. the leader which was the newspaper in sioux falls had asked for information on food stamp redemptions. indeed they have redemption data when it comes from retailer. unfortunately they said well, this information is basically that nature and i believe this applies appropriately. unfortunately when they got to the eighth cirque ult, they said that -- let me see.
the exemption applied only to the data supplied by retailer and this is aggregate the and collected by the department by 30 party processors and a debit card that food stamp recipients use. they said that the only provision under this is exempt and they cannot be obtained with the court. so because the information had not been obtained from the proper party, the rule is that the exemption applieapplied. the other exemption, there is
not that much litigation. often times it exists to serve the interest of various institutional interests and the division and to provide the records because they do specify what the record is. it fits into the exemption and it's exempt. often times i think the bes in particular like exempt to three statutes and more than the business exemption. in the past year, one statute that has been litigated up and down and came back is the act that basically said you can't get information about the
munitions and the problem with that is that it expired up to 15 years ago. and nevertheless the circuit ruled in the interim that it is no matter whether it's ex-peered or not, it's because of the way it continued to be implemented through the orders and what not. a judge in california said no, now we are to eight years further down the line. there still has not been any moving congress to reauthorize this statute. they can't use the statute as an exception three statute. the other two were kind of interesting. i think one statute -- let me back up a little bit. at the beginning of president obama's administration, an
incident in which there was a case that was accepted by the supreme court having to deal with disclosure of the detainee photos from iraq and afghanistan to prevent the case. the obama administration and democrats and the senate put together an exemption three statute that allowed the defense department to certify that the records should be exempt and they would be exempt. the prid pro quo for passing that is known as the open foya act. that states that you can't have the exemption three statute that is not valid unless it cites through the freedom of information act. recent
recently it has been recognized by the statute passed to protect and prohibit the bureau of alcohol, tobacco and firearms from releasing gun trace information. this doesn't describe the documents per se as much as it said you can't have funds on dealing with this. this exemption was cited quite recently in a case. the jewel ruled because it doesn't site. it wasn't valid any longer. he doesn't order disclosures, the other statute that has a
name that is so long i can't pronounce, but the defense department can continue to withhold the record fist every three years it certifies that there is a security reason that outweighs public interest and protecting them. the judge in new york decided after reviewing the affidavit and the defense department secretary of defense leon panetta didn't do anything more than refer back to the case and they were not adequate to meet the agency's burden. he shot down that use of that exemption as well. he said well, you know this is
will let the government come up with some other defense. i thought those were several rather interesting cases. as far as three was concerned. they got my vote as the absolute worst case of the year is a case called, such a mouthful. it's called public employees for environmental responsibility versus united states section international boundary and water commission. in the interesting in january of this year. the case they had made a request
to the water commission for some records and the agency had we held records that dealt with the assessments of two dams. the agency's jurisdiction is basically the rio grand river is and the immediate tributaries. they had reports on two dams on the vulnerabilities of two dams and flood inunidation plans which are plans that project scenarios of what might happen to downstream populations if something happened to a dam. they with held both of these and the district court and the district court upheld the claims completely. when it got to the d.c. circuit.
the records were not -- this was not a u.s. section and a law enforcement. they could claim the records were exempt under the law enforcement exemption. imgs. the judge brett cavanaugh who wrote the opinion for the court said that you didn't really have to show that an agency had a law enforcement function but just that it was created for the law enforcement purposes and what the court did was clung on to samuel alito's concurrence in the department of navy which was about exemption to the risk of circumvention too and in that case the court decided that that
language did not comport with the language. and the provision that a court created the provision for nearly 30 years. it was no longer any good. the government could claim that it was law enforcement records. they were clearly used for law enforcement. if any record fits into that, down the line it can be used for an exemption. he also said that and earlier with the kpleem court decision,
and versus the john doe agency and the audit had been conducted by the defense and auditing agency and that was more or less public low available when it was created. qualified as the law exemption record after it became part of the fbi investigation of the contractor. the argument was that the statute said it had to be covered by exemption 7 and has to be created for law enforcement purposes. the court agreed that it can be compiled for law enforcement purposes. the court as i said with the concurrence said anything can be compiled for law enforcement purposes qualifies.
all of this information qualifies. in my mind it was a disaster waiting to be happening. it happened because and it expands the category of law enforcement records to such an extent and almost anything that pertains in any way to security or resource management or anything that could be law enforcement. we now have this case on the books and fortunately nobody hardly has used it. it was the killman case. the homeland security with analysis of where the fence ought to be built in texas. under exemption 7 e that costs the methods and techniques. gillman said much of this stuff
is really public information and it's about the observable geography of the boarder and what not. it's not about methods and techniques. what how said was that the discussion of publicly available information itself reveals what information customs and border protection consider when is analyzing vulnerabilities at the border. this analysis risks and essentially said even if the agency was using information that could be categorized, it's public information. the fact that it was analyzing the public information along with nonpublic information in such a way made it so that it did fit. with that, i will conclude and take things up later.
thank you. >> for those watching on c-span, the critical factor here was ask the agency specifically for what you want. recognize the agency as many incentives not to honor your freedom of information request. if you are really bored and it's lady at night and you are watching c-span, switch over to the cable channel that is watching monty python and the holy grail. there in the holy grail, the ogre at the chasm of death asked the poor traveler what is your name? what is your quest? what is the capital of syria? you can answer the 50 two, but not the third, you wind up in the chasm of death. they have ways of dealing with the requests that it doesn't really want to honor. with the bit of cinematic
metaphor, we are proud to have with you alan butler. alan is one of the leading thinkers with the electronic information center. the bbc radio program this morning. spooky uses in the era of ed snowden. we are about to go into the subject of big data who on that subject and in the public sector is listening to you and forming big data about you. all the issue with the electronic privacy information center on its agenda. >> that's a lot to cover in a brief amount of time.
>> and transparency and oversight-related surveillance. so just to give a brief background on sort of what we oe talking about here, you have heard about a number of different programs likely over the last year if you have been following these nsa stories. i will just sort of give a a quick overview so we have some sort of common terminology and framing here. so there's really a number of different authorities that the nsa has learned about. the section is 215 of the patriot act of title 50 of the surveillance act. this is the business records provision. this is the provision that we heard about most notably last year with the initial snowden leaks and discussions and disclosures. the provision that was relied
upon by the nsa and fbi to acquire all telephone call detail records on an ongoing basis, both local, domestic and foreign records. so this is a provision that was enacted, as i said, in the initial patriot act and in subsequent amendments that provides for the authority to obtain business records or tangible things that are relevant to an ongoing international terrorism investigation. so when this provision was initially enacted, it was sort of -- there was a a bit of backlash because people thought it was all about -- it was going to be used to get people's library reading records. in fact, there was a subsequent amendment that specifically limited the use of this provision to obtain information on a u.s. person based orphan their first amendment protected activities. everyone was focused on library. records and no one knew this was being used to collect records in
book and to put con treat details, the primary order, what happens here is the fbi files an application with the foreign intelligence surveillance court, which is a panel of federal judges provided by the supreme court and that panel sort of sits in wait for applications from. the national security division of the department of justice. they review those applications in secret in a session similar to magistrate. the court there we found out last year issued an order to verizon business network services chrks is a sub siz area of verizon business network, asking for all call detail records and defining what is included, but basically phone routing information. call, time, numbers dialled, to and from, duration of the call,
identifying information about the phones, et cetera. they are asking for verizon to produce that information on an ongoing basis for all calls that it processes. that's what we mean by a bulk collection. it's not about a specific record or specific investigation. it's being. used by the department of justice and the fbi to collect all call records available in the united states . we know from public statements of officials that these orders with respect just issued to verizon. they were issued to at&t and sprint, the three major phone providers in the united states. so the theory was that in order to find the needles needed in the investigation, the fbi and the nsa had to get the hay stack. they literally had to collect all the telephone records they could in order to subject them to query analysis that they call contact chaining. taking a phone number and
querying to find out what are all the numbers that that phone number has called in the last five years and what are all the numbers that all the numbers that that number has called in the last five years. each of those is a hub. so that's section 215. then we learned about a program referred to as prism, which is actually a program authorized under section 702 of 2008 that was codified in title 50. this is a program wherein the attorney general and the director of national intelligence go to the phi is a court on an annual basis and issue directives to internet service providers. what this means is they go to the fisa court and say we have a program we'd like to implement to acquire communications that we believe are foreign communications from service providers in the united states and we would like to for the next year implement that program
with certain procedures, meaning procedures used to process the communications when it's collected. so the court say proves this program and then the fbi can issue these directives to service providers like google and skype and microsoft and say we have the authority to obtain the communication that we believe is foreign and related to our investigations. please give it to us. so we found out last year they had been doing this through direct access o to these internet service providers and there's been a series of developments and stories about that. two other provisions we have learned over the last year have been discussed are the national security letter provisions and the penn register provisions. these are both that exist in multiple places in the code. some there are both national security title 50 versions and regular criminal versions title
18 of both of these provisions. but the idea is with the national security letter, it's a subpoena issued by the fbi to a business for certain information relevant to an investigation. because it's a subpoena, there's no oversight and because it's a national security subpoena, there are usually attached with a gag order providing that the provider not disclose any information about that order. and the penn register provisions govern the use of technologies that obtain routing information about communications. so traditionally with phones, this had been call record information. numbers dialled to and from, but now with internet communications it could mean a whole other variety of information including information about what servers are communicating with each other, what communications are
being passed between servers and the like. and specifically with the penn register program we learned up until 2011 the government was using the penn register authority under the foreign intelligence act under title 50 to collect in bulk communications records about basically communications routing information about entire sets of e-mails related to investigations into terrorist organizations. this included e-mail routing information about domestic i e-mails within the united states. and then finally, there's another area of surveillance that we're now beginning to hear more about, which is surveillance conducted pursuant to executive order 12333. when you hear about 12333, what's happening is the fisa governs electronic surveillance
that's defined in the statute. basically what that means is the fisa governs surveillance activity that takes place within the united states under certain definitions. so there's activities taking place outside the united states both in other countries and surveillance that takes place at facilities, for example, where transatlantic cables connected and are routed through the united states and other countries. those activities are not directly regulated by the fisa. to so they are governed by an executive order issued by president reagan in the '80s and provides for certain limitations on intelligence community activities. so basically anything that's outside of fisa is governed by 12333. so with that background, i'll mention really quickly that building on what harry said that there have been a number of cases challenge iing the 215 ca
detail records programs. these cases specifically the main cases have been brought by three different organizations. one here in washington, d.c., the aclu in the second circuit and one by other groups in the ninth circuit. all these cases arise from basically the factual background that the entities bringing the suit, they are all verizon customers. it's not purely the case that they are arguing that the nsa collecting everything so they must have collected our call communications. they are saying we know the nsa collected verizon communications because we have this order to verizon. we' and they allege both statutory and constitutional violations. in the statutory realm, they allege that section 215 itself
does not authorize the nsa to collect in bulk call detail records from u.s. companies. and the basic argument there is the statute and the argument is that all records cannot be relevant. otherwise relevance has no meaning. the arguments we have seen in briefing from the government and in opinions that have been released from the fisa court is on the other side is essentially an argument of necessity. the government says we have a need to collect all these records because in order to get the needles we need the hay stack. which is not really an argument about relevance so much as it is about necessity and it's not clear why it is the case that necessity should be sufficient where the statute is relevance. that's an ongoing issue. the second that's being briefed
is whether the collection of all of these domestic phone records without any reasonable suspicion or probable cause violates the fourth amendment. the main response from the government and president of the fisa court opinions in those cases is that basically call detail records are not protected by the fourth amendment because of smith versus yapd, the case from 1979. and so the ongoing issue there, especially now post the supreme court's most recent decision in riley vs. california is whether smith vs. maryland is still applicable to telecommunications networks in 2014. that will be an interesting issue to watch going forward. all these cases are pending. the claim in d.c. will be heard in a few weeks. the smith case will be heard a few weeks after that in december. those cases will be interesting to watch and many sort of people
who read the tea leaves predict that issue will end up at the supreme court within the next few years, but we'll see. i'm going to talk about a few more developments in national security over the last few years. they fall into four different categories. the first is transparency in this area and new releases and information that we're learning about. the second has to do with sort of the president's reaction to the leaks in his decision on how to change the programs going forward. the third is about congress's reaction and where congress stands on these reform questions and the fourth is about the biggest new issue going forward which is 12333. first on declassification and transparency regarding these types of surveillance, there's been a few significant developments here. the first significant development to highlight is the fisa court, which for many --
existed for many years since the late 1970s and has heard for a long time only applications for individual surveillance based on reasonable suspicion that individuals were foreign actors or agents of foreign governments was really a niche area that most people didn't pay attention to until much more recently and especially over the last year. now amazingly the fisa court has a public-facing website and docket. so they have a public docket and they are releasing information about public cases and that d k docket has 200 ent ris and they are only entries after 2013. in addition to that, we're also getting on an ongoing basis troefs of historical opinions that had been withheld for years and years on classification grounds that are being
declassified by the director of national intelligence. there's too many to go over in this short forum, but most importantly, i'll highlight a few things that have been declassified over the last year. one of the most important things that's been declassified is the o original opinion authorizing the interpret metadata program. this was an opinion issued in 2004. this is really the seed opinion for all of this bulk collection. what essentially happened, and on a related point, another thing that's been released in a case my organization brought is the memorandum written by jack goldsmith and others that proceeded the interpret metadata opinion. this was the analysis that said basically this interpret. metadata program is legal if the fisa court and then they sought
approval from the fisa court. what really happened in terms of the timeline is that these programs were in development and ongoing since 2011 after 9/11. but they were conducted within the bush white house within the nsa and secret for a number of years and there was a revolt within the white house and the department of justice over authorization of these programs and they were subsequently transferred under the provision in 2004. in 2006 they applied for the first business record call me metadata order. that fisa court granted that application without even writing a written opinion. they didn't write a written opinion because the department of justice basically pointed at the 2004 opinion and said this within internet metadata is what
we're applying for. it sort of sets the framing and the context for this debate over the legality of the program again under the statute and also constitutionally. another thing that's sort of relevant to the transparency issue is that the director of national intelligence. also has a public-facing website where it publishes declassified documents interestingly enough it's a tumblr page. it's actually an interesting resource for declassified documents in this context. there's a lot of historical information up there now and they are continuing to publish more and more information there as well. we have also had public reports issued by the privacy and civil liberties oversight board. one report finding that the 215 metadata program was illegal and it was also ineffective is and a report by the president's review group that was especially
appointed last year to review intelligence programs that made a similar finding about effe effective u neness. there's been a lot of reporting going on. and a lot of transparency there. there's a also been a battle between internet service providers that are subject to the government over what they can release in their transparency reports. a number of providers including google and yahoo! and the like went to the fisa court and seek ing the permission of the the court to release thing e ing in numbers of the orders they receives and the government settled out of court in this case with a new sort of set of rules those companies can follow that allow them to report in bands of 0 to 500, et cetera, how many requests they are
receiving. and more recently in the last few weeks, twitter brought suit in federal district court seeking to disclose more information than that. twitter is not subject to that concept order and they want to be able to release even more information in their annual transparency reports. so then moving on to the president's speech, the president gave a major speech on nsa surveillance this year in january on the 17th. he really addressed two issues in that speech. the first was he made a pledge to end the suspicionless bulk collection as we know it and they began to implement that program with certain self-imposed restrictions within the first few months. basically the doj went back to the fisa court and said we still want authority to collect all telephone records, but we're only going to query those
records when we bring the court evidence that we have a reasonable suspicion that the number we're using to query the records is related to international terrorism in an investigation. so they self-imposed some restrictions but they refused to stop collecting in bulk until congress passed a new bill that i'll talk about in a minute that would sort of change the regime that they would operate under. the other thing the president announced is he would impose new restrictions on foreign data he collected and that proposal was summarized in a presidential directive he released. in fact, pursuant to that presidential policy directive, one of the first orders was for the intelligence community via to develop new procedures for the handling of the data that they acquire and that report,
the first report by the dni on that process was just released this morning. now there's a new report and the dni is focused its inquiry on next steps for the intelligence community agencies on how they are going to modify procedures. one thing i'll sort of mention big picture. the efforts of the administration and the director of national intelligence here are entirely focused on min mization rules and restriction on the use of data they have already collected. it's the administration's position that with respect to data, communications data acquired outside the united states, not on specified individual persons, they don't want any restrictions on collection. they are focusing all of their
energy on talking about restrictions on the use of that data, how that data might be minimized or sort of processed after it's already been collected. they don't want to accept any restrictions on their ability to collect that data. so moving on to what's happening in congress right now, originally, there were kind of two bills that were developed in the house and senate coming from different sides. one coming from sort of intelligence proponents and the other from liberals and other anti-surveillance members. now what we have had is a combination of groups. we have had a coalesced unity behind one bill that has two versions, one in the house and senate backed by the administration and the dni as well. that bill has gone through several rounds of revisions that
have been significant but in a lot of detailed ways, but what we have now is a version of that bill that's pending in the senate. it's probably unlikely it will be passed this year, but it's certainly a possibility. more interestingly i think from a strategic perspective, if it did you want pass this year, next year is actually when the sunsets. so there will be a forced decision from congress has to whether to extend that authority or not and that will raise additional points about these authorities. just to give a brief outline of the bill. there's a lot of detailed provisions in it, but the basic structure of the bill is that there's certain changes to the rules of section 215, section 702 and the national security letter provisions. those changes specifically are within section 215 to kind of
codify the new non-bulk call detail records that would allow the government rather than collect from the telephone companies all records and then que query them themselves, they would have the government go to a telephone company and ask for queried records from the telephone company. they would say here is a number, a seed, please give us all the contacts, the first two hops of data from this seed and so the government that way would not be collecting everything and then querying it itself. it would have the phone company do the querying and deliver the results to them. and there's other limitations on section 702 in the provisions and there's also new reporting requirements. new requirements of inspector general's reports and transparency reports that would -- and that would require the government to account for things like the number of queries they are submitting and
also provide dedescriptive of their analysis of that data. finally, there's a provision of a creation of a special advocate at the fisa court. the idea here is that there would be either a dedicated individual within the federal government or a panel of expert attorneys that would be available to provide arguments on the other side of fisa applications where a significant interpretation of the law is concerned. the most current it ration of this proposal has basically the fisa court agreeing on a panel of expert attorneys and the fisa court making the decision when to bring those attorneys in for briefing if there's a significant question of law. so i think the current proposal as congress is considering it has certain strengths and weakness ins. the primary strength is it would
fix the narrow problem of phone records in the sense that it has a provision within the law that cle clearly says the government cannot collect in bulk and the way it's been doing and instead has to go through a new system where the phone company delivers query results to them. another strength is that it would require the ongoing declassification of significant fisa court opinions. those in the past is a huge root of the problem that we have seen where there's really this disconnect between the intelligence community and congress and the public in terms of what they think the law is and how that develops. finally, another strength would be the addition of adversarial at the fisa court itself. but i do think there are significant weaknesses to the proposal as it's articulated. it doesn't limit what they call back-door searches within
section 702. what that means, section 702 is a program of what you might call bulk collection in the sense they are not collecting every electronic communication that ever gets transited abroad, but they are collecting large categories of communications. it's not tailored to a single e-mail address or a single term. once they collect that information, which they have to target to communications they believed to be foreign, they are going to necessarily acquire communications that are purely domestic and include the communications of u.s. persons. the question is once they have that data in a database, who can search it and how can they search it. what can they search it for? specifically, can they search that information once they have already collected it for the name or seed of u.s. person. can they take a person's e-mail address and search. the 702 database for
communications of that person once they have already collected them. if so, do they have to have a warrant, reasonable suspicion so the law does not address that. it also did you want address bulk collection under section 25 2 15 that aren't call records. there's a pretty strong theory that the government is collecting financial data in bulk. if they are collecting financial data in bulk, that would not be covered by the provisions in the current version of the bill that govern collection of call detail records. also i think the transparency versions are somewhat limited in terms of how the recording would actually be accomplish ed. there's specifically the fbi, which is one of the major actors on the domestic side of this is exempted from the transparency requirements. finally, looking forward the looming issue and the issue that the club is now considering and others have been discussing is
the issue of surveillance under executive order. this is surveillance that has, for the most part, fallen outside of the traditional oversight mechanisms that have been in place for fisa. it's surveillance that the public knows very little about. there's been statements made by a former state department official who is now sort of an active whistleblower in this area that said the way this is being used by the federal government in certain circumstances he thinks violates the fourth amendment. what he's implying is that there's a great deal of data communications that's collected outside of the united states, but that involves communications of u.s. persons. this is easy to understand when we think about the nature of interpret and telecommunications. interpret communications transit the globe in many ways. they transit the globe when u.s.
persons sends an e-mail outside the united states. they transit the globe even if we send it within the united states, depending on how the packets are routed and also that the companies that provide these services like google and yahoo! have servers outside the united states. for redundancy purposes, they are transferring that data back and forth over the border. so a great deal of domestic communicati communications are sort of subject to collection outside of the united states, beyond the ru rules of the fisa. when those are collected. we ask the same about 702. who can access them, what are the minimization rules and who can search them and who oversees that process. that's really going to be the question -- the main questions going forward in that area. with that, i can turn it over and have some questions.
>> a quick administrative point. as you head out when you're ready to go for the break, pick up the thumb drive that has the documents to which bernie and harry made reference. it if you didn't pick up the printed versions, the thumb drives are available at the registration desk. secondly, this is a cle program and so we have evaluation sheets also available. so please consider rating our presenters. i'm very pleased with the presenters and the quality of the excellent work they have done. now it's your work. unfortunately, we only have about five minutes. so i welcome your question please. keep confidential your identities so we don't know. >> i have a question for mr. butler about the usa freedom act that would impose some limits on surveillance and collection and monitoring. one, are there time limits on record retention?
>> yes, so traditionally the time limit has been five years. i believe that the u.s. current version of the act retains that five-year period. >> and another question is do both the house and senate versions of this legislation now agree that there should be a panel or a special advocate? this is something that was c contested by u.s. district court judge john bates who at one time was chief judge of the fisa court. >> right, so the house version, to clarify a bit of the procedural, the house version has passed by the full house. the senate version is different and is, i believe, being considered by the senate judiciary committee or might have passed out. regardless it has not passed the full senate. both versions, i believe, have the panel at this point. but you're collect that judge
bates has been sort of an outspoken advocate and somewhat contentiously he's written in his voice as the administrator -- in the administrative office of the executive courts he's spoken for the judiciary on this position and other judges have written about that. >> next question. >> i have a question. i have a vague recollection that obama either made a statement or issued an executive order that foya should be more generously interpreted, how it was being handled under bush and there was more denials. in your sense, do you think that has come to pass or not? >> the 2009 document which referring was issued soon after the inauguration of president obama. we call it the holder memo, but it was attorney general holder
who was replacing or basically vacating what the george w. bush administration had. so the holder memo in january or february of 2009 was extremely supportive of public disclosure and there's a wide spem truck of opinion of how effective that was. dogs bark and cows moo and administrators don't like to diz close things shs regardless who is at the top of the agency. from my perspective as a viewer, the holder memo has not been implemented. >> i don't have any strong feelings, but it would be hard to be more conservative as far as providing documents on the bush administration. so my sense is that the administration is a little bit more willing to provide documents that they would have an argument withholding under foya, but i don't have any kind
of evidence to support that. >> harry? >> i think this is a perfect example of the saying, he talks a talk but doesn't walk the walk. the obama administration -- i would say that the holder memo which implemented a memo that came under obama is not an executive order, but this administration has said some of the best stuff about foya that any administration in memory has said. but when push came to shove, they have been performed much better than the other administrations. i think a lot of people thought that this administration was more open actually there's a legislation that has passed the house and is currently bei lly
senate, but one of its features would be changes in exemption 5 in the process privilege largely because that's considered to be one of the most abusive exemptions used in government, and that has not been the -- the abuses have not been any better under the obama administration. basically, i'd say a lot of people would say this is more talk than action. the talk has been extremely elegant. >> certainly, make your own judgment. when you read the holder memo, it's significantly open. when you sit in ohio and work as i do on issues involving the natural gas fracking and you look at it and say, why won't the army corps of engineers tell us what they have been doing to support the drilling under the lakes? they released one memo that says, let us know how our
engineers can help you find more gas under our lakes. and the bomb trains, utility-sized rail cars full of material coming from the shale in north dakota. it's coming through the rail lines. i have been an elected official in a community. we are trying to find out what's in the trains and how many of them are there, a bomb train is my word, not theirs. and the a answer is we can't find out. it's frustrating for the local elected official not to be able to get this information. i'll spare you my grief and turn to alan. >> i think as a lit gator and requester, we have not experienced a wealth of additional transparency under this administration. partially what's happened is there's been a pivot by the obama administration away from foya towards open data
endeavors. so they have done a lot in terms of creating new portals. sort of opening government data sets. but they haven't been doing much to improve the process for requesters or litigators. i think there's a disconnect between -- also between how foya is handled by the department of justice versus it is handled by litigators in the civil branch. we have seen some really extreme claims by government lawyers in the civil branch that i don't think even the department of justice would support. >> it really has been remarkable the gap between what the obama administration has said on paper and what they are allowing their staff people to do. we have time for one more question. anyone who would like to ask a question? thank you very much on behalf of
the committee. we would encourage you if you're not a member, join the section of practice. please join the committee on government information privacy. because this is really relevant stuff. this is very significant administrative law. we need your brains and your wisdom. thank you very much and have a good afternoon. [ applause ] tonight an interview with the university of wisconsin's president. after that, the senate narcotics caucus looking at heroin drug abuse. and then the heritage foundation will hold an event for alternatives for drug abusers. and a discuss on the report for tobacco use in the united states. all these programs tonight
starting at 8:00 eastern on c-span 3. campaign 2014 coverage. continues tonight with a new jersey senate between cory booker and jeff bell. it's the first and possibly the only. debate between the candidates after recent polling listed the race as solid democrat. you can see it an 8:00 eastern on c-span. and a congressional house debate between john bar row and rick allen. the political report rates this race as leans democrat. you can see that at 8:00 p.m. eastern. also tonight a south carolina senate debate between gop incumbent tim scott and jill bosse. it's the first debate between the candidates and both seats are on the ballot this year. jim demint resigned to run the heritage foundation and scott was selected to fill the
remaining two years of his term. you can see that tonight on c-span. the 2015 c-span competition is ushd way open to all middle and high school students to create a documentary on the theme "the three branches and you" showing how policy, law or action by the branches of the federal government has affected you or your community. there's 200 cash prizes for students and teachers totaling $100,000. for the list of rules and how to get started go to stude studentcam.org. on yesterday's washington journal we spoke with a reporter who has been covering the kansas senate race between republican pat roberts and greg orman. one is considered to be a gop stronghold, kansas finds itself to be a battleground state due to the departure of chad taylor. here's more about that race.
>> campaign 2014, eight days until the election. let's take a look at the kansas senate race. we're joined by a political correspondent for the kansas city star. steve, thanks for joining us this morning looking at the race between pat roberts and independent greg orman. where do things stand eight days out? >> it's still obviously a very close race out here, bill. the latest polls that we're looking at here suggest that orman might have a lead of a point or two, but obviously, that is within the margin of error in these polls out here. but a very, very tight race here. there's no question about it. >> last week the pat roberts campaign bringing in the big guns, bringing in mitt romney. who else has come in to campaign for the senator? >> at this it point, about half the u.s. senate has been out
here to campaign for pat roberts. he's had john mccain here, rand paul, ted cruz, one senator after another, tom coburn has been here for him. today, as you just mentioned, mitt romney will be in town. he will be here in a kansas city area suburb just on the kansas side. i think he'll draw a pretty good crowd. mitt romney is still a big name in american politics. that's why senator roberts is bringing him out here. so it will be fun to see what happens. >> what's the get out the vote effort been like for the roberts campaign and the orman campaign? he's an independent so who does he rely on? the democratic party is not there for him to do the get out the vote campaign? >> that's one of the big questions that surrounds this campaign as we head down towards election day. who does greg orman count on to get the vote out?
he did you want have very much of an effort, at least in the traditional sense that we judge these things now in american politics. as you point out, he's an independent. the democrats are reluctant to help him on that front. they don't want to be caught helping greg orman and further tie orman to the democratic party. that's been one of the main arguments throughout the campaign from the roberts side, which is that orman is a liberal democrat. he's a democrat who has been hiding behind the cloak of being an independent candidate. so they really want to avoid that kind of association. so orman is, from what we can tell any way, is pretty much on his own when it comes to getting the vote out. you wonder how that will affect him. roberts will have the advantage of having a long-established republican machine behind him. very well known for his get out the vote apparatus that helped brown four years ago.
should help him again this time around. so roberts will be able to bank on that kind of support. orman did you waoesn't have tha behind him. you wonder how that will affect his vote. >> you not only have an election eight days away, but you have a world series going on there coming back to kansas city. is there any interference? is that a distraction in terms of things like getting air time for tv spots, political ads and things like that? >> if you watch the world series out here, you're seeing lots of ads for orman. lots of ads for roberts. i don't think there's been any impact at all. we have noticed some research that's been done that suggests that if you have a successful home team in any sport, that tends to favor incumbents going forward to election day. how big of a factor that is, i doubt. but there is research that
suggests there is that kind of tie going into election day. >> we'll find out this week on one of those pieces of it. steve, political correspondent with the kansas city star, follow all the action there in the senate race in kansas. thanks for joining us this morning. >> thanks for having me, bill. in early october the heritage foundation held an event on the visa waiver program that allows citizens to travel to the u.s. for 90 days without a visa. homeland security secretary michael chertoff and poland's ambassador to the u.s. this is about an hour and 20 minutes. >> let me add my welcome to everyone. i think we have a good program
for you this morning and hopefully we'll all come out of this a little better informed than when we got here. the program will go as follows. i will introduce secretary chertoff. then he will speak, answer a few questions, then he has to depart and we'll bring the panel up. i'll introduce them. we'll do the panel piece of it. finally we will wrap up with closing remarks by the ambassador. so without further ado, i'd like to introduce secretary michael chertoff. he is the executive chairman and co-founder of the chertoff group. probably even more significantly, he was the secretary of the department of homeland security, took that job at a very difficult time, and, frankly, sort of remade the organization and brought it up to a status where it was extremely effective and i say that as having been the department of defense counterpart to dhs during my time as deputy assistant.
i had the opportunity to work extensively with secretary chertoff's folks and quite a few rather interesting events, both natural and man-made. he is also a former federal judge for the u.s. court of appeals for the third circuit and was a federal prosecutor who, among other things, prosecuted the -- or conducted the investigation into the 9/11 terrorist attacks. with that, i will ask secretary chertoff to join us. >> thank you, steve. it's good to see some familiar faces in the crowd, including some veterans of government during my tenure. one of the things i did when i was secretary of homeland security is i was engaged in the process of expanding the visa waiver program.
in 2007-2008, i expanded it to incorporate a number of nations in central europe. in 2008 i actually had the opportunity to go around and meet with the leaders of those countries and it was a remarkable experience. in fact, in many ways one of the highlights of my professional tenure at the department, because i was made aware of how meaning it will that inclusion into the visa waiver program was to the citizens of those countries of central europe. time and again i was told, whether it was the baltics or the czech republic or slovakia, the inclusion of these countries in the visa waiver program was the final step in recognizing their migration from being under the control of the former soviet union into becoming full members of the association of freedom loving and democratic states. it was not just an economic travel issue but it was a moral and political issue for these countries.
by the way, if you ever want to experience real gratitude, it's to go to a country which has been admitted into the program and to see how even every day people react to being told that they're finally in the category, equivalent to that of western european allies that we have had within the program for a long period of time. in fact, even my barber here in the u.s. who is from korea made a point of saying the next time i wanted to get my haircut, thank you very much for admitting korea to the visa waiver program. so it was very, very meaningful. but i'm leer to talk about the program not in light of my experience in 2008, but in light of where we are now. and obviously we are in a dangerous place in the world, perhaps more dangerous than at any time in the last ten years. that's to say, past a couple years after the events of 9/11. that's, frankly, because of the proliferation of terrorist
groups really ranging from parts of africa all the way east into afghanistan and pakistan. a notable element of what we've seen in the last year or so has been the rise of groups like isis in syria and iraq that deliberately recruit foreign fighters, westerners, americans and europeans, in order to have them not only train and participate in terrorist activities in the middle east or in africa, but also to prepare people who may come back to the united states or western europe at some point and carry out attacks in those locations. in fact, just recently, the person who attacked the embassy in belgium engaged in activities with syria and iraq. this obviously raises the question of security with travel and the security with respect to
visitors and put it on the front burner. i know that some have suggested that maybe we need to revisit the visa waiver program. i'm here to say that i think that would be a huge mistake. i think it would be the equivalent of trying to conduct an operation that requires a scalpel by using a chainsaw. all that happens is you don't achieve your mission and you wind up killing the patient as well. i think there are things we could do to enhance our security, but i actually think within the visa waiver program we can be more effective in doing that. so i want to take a few minutes to lay out what i see as the benefits to the united states of having a vigorous and effective visa waiver program, and then talk about a few of the things we might do to make sure that we can continue to protect
ourselves even within the framework of that program. first, it needs to be clear that the visa waiver program is not a program that allows anybody willy-nilly to come into the united states, whether or not they pose a risk. when we inaugurated the expansion of the program several years ago, we added an element called the electronic system of travel authorization. this is a very simple and straightforward system that requires visa waiver participants, requires their citizens periodically to file online with the u.s. government a brief statement about their particulars, the kinds of things we normally collect at the border itself, but to do so in advance. and what that does is it creates an opportunity for our government to look at the details of someone's birth date, address, things of that sort, and determine whether, based on what our intelligence is, this person poses perhaps a risk that requires a closer look at the time that they arrive in the
united states. so it is a very unobtrusive and convenient way to collect information in advance that we used to collect only when someone arrived in the u.s. and that gives us the opportunity to analyze that kind of basic data so that we can determine whether people are maybe red flagged for purposes of further inquiry. added to that we have the capabilities now through our ability to review and analyze passenger name record information which is basic travel data about people's address, contact information, and travel route, by combining this with esta, we are able to take a deeper look at the kinds
of connections or contacts that might suggest someone is a risk that we can then pull into secondary when they arrive in the united states. these programs have proven very powerful over the years in allowing us to avoid the problem of people coming in as operatives from overseas because we had an early warning. and that applies with respect to western europeans as well as those from other parts of the world. now, there are some other benefits that we get from the visa waiver program that are maybe a little bit more broad than simply our better visibility than who's coming into the country. one of them is the increasing solidarity that the program gives us with countries in europe, and in particular central europe. it will not have escaped your notice that we're at a time now, maybe again for the first time in many, many years, that there is a serious national security
issue on the european continent. of course i am talking about what's going on in ukraine and the various threatening noises that have been made from time to time from mr. putin with respect to the baltics and central europe. from a strategic standpoint it would be a problem of the first order if the countries in the baltics. one of the thinks the visa waiver program allows us to do with these countries is re-affirm our solidarity and our belief that the new democracies of europe are every bit a part of the western enterprise as the familiar democracies such as england, france and germany. and i think maintaining that sense of solidarity, particularly at this moment, is of critical importance to american and indeed to the whole nato national security alliance. finally, there's of course economic benefit. the ability for central europeans and koreans and others to travel to the u.s., and for us to travel to their countries
without the need to get a visa and go through a cumbersome process. facilitates trade, economic activity and even cultural exchange. and particularly at a time that the global economic climate remains fragile, and recovery is uneven, to say the least, promoting economic development has a positive benefit for. country, as well as for the countries that we travel to or that have citizens that travel to us. now, what do we say in light of these new threats with respect to foreign fighters. well, of course, one point to be made is that obviously with respect to americans who go to iraq and syria to fight with isis, or who go to -- who went to somalia to fight with al shabab, that's not a visa waiver issue because these are american citizens who are entitled to come back to the u.s. and they don't need a visa under any circumstances. what we need to do to identify these returning fighters and the same principle applies to fighters who are coming via perhaps western european countries and then traveling into the u.s.
what we need to do is to have a judicious and analytically sound collection of information about travelers that allows us to identify patterns of behavior and connections that suggest we need to take a closer look. that may be, for example, e-mail contacts that turn up connected to e-mails of terrorists. it may turn out to be telephone contact numbers that we've previously identified as associated with terrorist groups. it may be behavior in terms of travel patterns that suggest someone has gone perhaps through the middle east, been there for several months, and then emerges and we don't have a clear picture of where they were. that's not to say that that is necessarily proof of guilt, but it is proof that you need to
look a little bit more closely. and the ability to use programs like esta as a way of collecting that information, the ability to use what we've been doing with respect to passenger name record information as a way of identifying patterns that require a closer look. this is exactly the kind of scalpel that we need to use in order to identify those who might be at risk in terms of terrorist activity and to then take a closer look at them. you know, just to give you an idea of how effective this kind of thing can be, we look back at the 9/11 hijackers after we had put this program into effect. we wanted to see if we had had the current programs we have in place prior to september 2001,
whether we would have picked up connections among the 19 hijackers. when we ran the current programs retrospectively, we discovered that 15 of the 19 hijackers we would have found connections on and we would have found some of those connections then taking us back to individuals we knew and had identified as al qaeda operatives or supporters. so we have really validated this concept and it has served us well and i submit to you it can continue to serve us well even while we maintain the visa waiver program going forward. finally, i think there are a couple of other things we can do. one is we have begun to expand preclearance overseas. we have preclearance in shannon, in ireland. i know that the department of homeland security's looking at preclearance in other areas. now to explain what preclearance is, it's a program where with the agreement of a country overseas we are able to place our customs and border
protection officials in an overseas airport and effectively they conduct immigration and customs before people board the plane. now that's a convenience to the people who come to the u.s. because they no longer have to come through a gateway that has. in the u.s. they can travel directly to other cities. but it's a benefit to us. because we get, again, an early look at the people coming into the united states. we get not only to look at the paper record and whatever we are able to collect using esta and pnr but we're able to have trained officers look face-to-face and examine the people who want to come into the u.s. to determine whether their behavior suggests questionable activity. that is an extra level of protection for us. it is also a convenience for the traveler because if you have a traveler that may exhibit a problem, we can catch it before the person gets on get on the airplane and that creates an
extra level of security with respect to aviation security. so preclearance is a win-win-win for the u.s. government, for the traveling public that's on the airplane, and for the country that is hosting our preclearance program. a second thing we can do, in order to make sure that we get the full benefit of what our current protective programs are with respect to visa waiver is to continue to support what is being done in our intelligence community to correct information about telephone numbers and e-mail addresses overseas that are potentially connected to dangerous terrorists. you don't need to look at the contents to recognize that when you have a particular ip address, or particular phone number that you have previously seen related to terrorist financing activity, or even operational activity, that anybody who connects with that number you need to take a closer look at. could there be an innocent reason to connect to it?
yeah, there could be. but, at the very least, it puts you on notice that you ought to be asking more questions. one of the things i try to say when the subject comes up about how to we deal with isis and the increased risk of the foreign fighters is, this is not the time to handicap or dismantle our intelligence collection programs using nsa and other intelligence agencies that have been literally the cornerstone of protecting the united states since 2001. it has made it much more difficult for the enemy. it has yielded concrete results. and at a time that we need this more than ever because of what's going on out there, we do not want to reduce the capability in this area. so in conclusion i will take a couple minutes of questions. i think the visa waiver program is a plus-plus for our national security. and for our economic security. i think that we have constructed a program that makes it a reduction of the vulnerability very powerful. there are some additional things
we can do and are doing to enhance our ability to protect ourselves, and the way to deal with the issue of foreign fighters is to use the scalpel of identifying them with precision and taking them out, and not the chainsaw of dismantling the program that has served not only the united states well, but our foreign friends and allies overseas. so with that if you identify yourself i'm happy to take two or three questions. yes? >> penny starr with cns news. thank you for speaking here today. what else is there that they look at that can help identify the bad guys for lack of a better word, than e-mails and phone numbers? is there any other data that this program allows the government to look at? thank you. >> yes. i'm not going to get here and tell you all the stuff that's looked at. i would be pretty silly if i did
that. so the answer is yes. but it's all completely legal and legitimate. yes? >> tom curry with the cq roll call. mr. secretary, you mentioned the value in the preclearance program. looking at the person face to face. go back to the -- to the visa process. what purpose if any does the traditional interview to get the visa serve in a counterterrorism role? and is that the value of that face-to-face interview lost because not everybody goes through this preclearance process. many visa waiver arrivals do not. so what value, if any, does the traditional visa interview have in counterterrorism? >> the interview is supposed to actually look at a number of different things. it obviously has value in terms of counterterrorism. but it actually arose in a
different context. what it was designed to do is to protect people who would come to the u.s. and overstay and not leave. a lot of it was focused on what are your roots back home. what's your reason for coming. things of that sort. often what happens these people show a kind of evasiveness or nervousness. it doesn't tell you exactly what threat they pose. but it tells you that there's something you need to look at more closely. there's no question that the visa interview adds a certain dimension. but on balance, in the end it doesn't really give you the kind of granularty you get with the data and the data analytics which have really far advanced where we were 12, 13, 14 years ago. so again if i look at the tradeoff, the positive benefit of the program and the marginal issue in terms of protection, i think the marginal cost is very
small and easily compensated for. and the benefit remains very powerful. i'll take a few more. >> thank you. brad clapper from the associated press. when you see efforts in congress right now some democrats and some republicans have even signed on to these to suspend the visa waiver program. how do you go about talking to them about what you said today? i mean, would you even be able to fathom suspending something that's letting millions of people in, i think 3.8 million brits last year. do we have staff that could do the type of work that would replace esta? if we don't, how long would that take to establish? how much money are we talking about here? so, could you go over some of those alternatives? however bleak they may be. thanks. >> i think you've actually laid out some of the problems. if you try to visualize what the consequences of terminating the
program would be, it's hard to calculate the cost is. first as you point out, there would be an immediate drop-off of travel both to the u.s. and from the u.s. that would not only affect the tourism, it would affect economic activity. and you have people going over to conduct business. or to sell products. all those people would want to go to the visa process. as you observe quite rightly, we have to staff up tremendously in terms of putting people overseas in order to manage the demand for visas, assuming people wanted to go through that process. that would have a serious impact on the federal budget. if you didn't do that we would be shooting a torpedo right at our tourism industry and our economy. i think under any circumstances, i'm confident you would see a measurable impact on the global economy and the u.s. economy almost instantly. we would irritate our friends and allies who we go to for help, for example, when we put together a coalition as we have in iraq and syria. and we would really give a boost to mr. putin. who would turn to the central europeans and the baltics and say, you know, they told you that you were friends of theirs, but the west pitches you over the side at the first sign of
trouble. i would say that you almost can't calculate the cost in our national security and the cost in our economic benefit and our federal budget in terminating this program. one more and then -- >> paul, powerline. your question -- i mean your answer regarding the face-to-face interview and the importance of that makes me think that perhaps we would be best off making the continuance of the program for the particular country contingent upon them implementing the preclearance within a reasonable period of time, so that we would be sure we had the visa -- the face-to-face interview on an ongoing basis. >> well, you know, preclearance can be a useful addition. not -- we don't have the money,
frankly, and the capability to really go into preclearance in ought the visa waiver countries. i mean, again, for people worried about the budget, there's a limit to how much money you have to spend to put people overseas and maintain them. and again, while that face-to-face element is a useful element, it is by no means essential. the most important tools you have are the tools of intelligence collection and analysis. i mean if you get a nervous person, that face-to-face is helpful. but, again if you're looking at the marginal benefit versus the marginal cost, i think the cost of doing it for every visa waiver country is far exceeding the benefit. >> thank you.
>> okay. >> thank you, mr. secretary. [ applause ] okay, i'd ask the panelists to come forward. i think secretary chertoff has done a great job of establishing the issues that we're attempting to deal with here this morning. i guess it's afternoon now. sorry. we have a lot of well-meaning people over on capitol hill and some of the commentators who are opining that perhaps the visa waiver program needs to be terminated, suspended, something like that. and that was the genesis of doing this event. we now have a panel. or two of the three panelists. the third one will arrive here shortly. but i would like to introduce them and get them started.