community to now focus on this person in the united states. in aurora, colorado. and understand that he was planning to travel, which he in fact did, to new york city, to carry out an attack, to blow up the new york subway. so that's, that's how it works. and then beyond that, the information that's incidentally collected about the u.s. person in that scenario, is subject as judge casey said to minimummization procedures that protect u.s. personal privacy. you cannot disseminate any information about a u.s. person unless that information is necessary to understand the foreign intelligence. and it's also subject to the extensive oversight that judgment casey talked about. and the last point i'll make, when 702 was passed, a number of folks in this room that were actually part of this effort as i look around the room. a couple of things, there were a couple of compromises that were adopted to protect u.s. persons. one was that for the first time a judicial order was required by the fisa court to target any

u.s. person around the world, outside the united states. previously that had been something that judgment casey could do as attorney general. so someone outside the united states who was a u.s. person, now needs a fisa court order to do that. that's one. and the other is there were a series of provisions that prohibited this practice of reverse targeting you'll hear about. which basically said you cannot, the government cannot target something overseas under this statute. under 702, who is not a u.s. person in order to collect against a person in the united states. you know for that purpose. that would be an end-around that was prohibited by the statute. to my mind, statute does a very good job of balancing these competing interests and enacting compromises. >> one of the, you mentioned minimization procedures. one of the other criticisms that i've sometimes heard from people who are worried about the program, is that the procedures themselves and the adherence to them are themselves not subject to judicial review. but rather only to administrative and internal

executive branch review. on a case-by-case basis. the overall procedures themselves are approved, but whether or not we've succeeded in applying them to rosenzweig is not something that could ever get before an independent court for evaluation. does that merit our concern? >> that's not entirely true, i think. the failures, if there are failures within the system, have to be reported on a periodic basis to the fisa court. when there are failures, those can be reviewed by the court, either one at a time or in gross. they are largely reviewed for the purpose of determining whether there was a problem with the procedures. those are then, those are then adjusted one way or the other. >> i think that's exactly right. i think that so the court would review and approve the minimization procedures at the outset. in total. and any time there's, then

there's oversight within the executive branch of the implementation of the procedures that's not just done by the intelligence agency, but that's also done by the department of justice. and then if there are compliance issues, those are reported to the court. the court can then amend those procedures to account for those, those compliance issues, if there are any. you know it strikes me that that's, i guess the other thing that happens is if there were instance where this information were to be used in a criminal case, a defendant would have the opportunity then to challenge the application of the minimization procedures in that particular case. that would be another opportunity for there to be judicial review. which is overall not unlike how it works in the criminal context. >> so let's wrap up the 702 discussion with a final question. it's going to come up for review next year. or renewal i guess, if it doesn't get he renewed, it lapses. your recommendation to congress? renew as is?

let lapse? or renew with modifications? and if with modifications, what, if any? >> the only modification i would suggest is to eliminate the sunset provision. as far as i know, al qaeda does not have the islamic state does not have a sunset provision. and in any of their campaigns or any of their orders. the various fatwas that were issued authorizing the murder of americans, do not as far as i know have sunset provisions. i don't think i mean it is always open to congress to change a statute. but to require that we go through this, every several years, doesn't make for continuity in intelligence-gathering and for the ability of the intelligence community to plan long-term. we can do it this way, and i am engine haden is probably the most tolerant of this sort of

thing of anybody i've ever seen. if that's the way we're going to do it, then that's the way we're going to do it, but i think we ought to do it with our eyes open and with an awareness that we are in a sense handicapping ourselves to no purpose, by imposing requirements like that. >> before you answer, if i may, general casey, you mentioned earlier the policy decision extending privacy rights to non-american citizens that have, has applied. would you recommend that that be considered and modified in the course of the legislative consideration? >> you mean to eliminate that presidential directive? >> you critiqued it? >> i did. >> i assume congress could prohibit it. >> it could. it could. it's, it is something for which there is neither need nor sanction. as i said, at the beginning, the constitution is not a treaty with the entire world.

and if you want to go back, take a really long view of this, the folks who drafted the constitution did it in the summer. they did it under conditions of strict secrecy. they kept the windows closed, before air conditioning. they're in a hot summer in philadelphia. all the windows were closed. nobody was permitted to discuss it, either at the time or afterwards. they did it in strict secrecy and included within the provisions in the constitution itself, was a directive that for example, congress publish a journal on a regular basis of its proceedings. except for those parts that it thought ought to remain secret. these were practical people. they were drafting a document for other practical people and we ought to be practical people in applying it. >> matt? >> it's on the question of 702 and the sunset and the reauthorization that next year when it sunsets, i mean i

basically agree with judgment casey, i would eliminate the sunset provision. it tends to mean that congress will wait until the last minute and the final hour to renew it and that just wreaks havoc operationally within the intelligence community. as it preparing to either pull the plug or continue the program. it's not a good way to run the intelligence community. but the more fundamental question of you know does it need to be changed, i just feel the answer is no. you know, i mentioned before, this 702 really reflected years and years of effort to reconcile competing interests. it reflected judicial decisions, executive branch experience, legislative efforts. that came up with this compromise. and then you now have really an authoritative, definitive report from the privacy and civil liberties oversight board. that found it was operationally indispensable. that it was lawful, consistent with the fisa constitution of the fourth amendment and importantly found no instances

of misconduct. so there's really no problem to solve. that anyone has identified. as far as i know there have been two district court decisions, one in oregon in 2014 and one in the eastern district of new york this year that looked at the question of incidental collection under 702. in both instances, these judges, not fisa judges, but in criminal cases, found it was constitutional and lawful. so it works, it's legal. there aren't problems with it you know, don't change it. >> just adding something to a point that matt made, a vital point. and that is that the criticisms of it have been hypothetical criticisms. not criticisms based on real instances of abuse. in other words, people sit and contemplate the possibility that somebody could abuse 702 if they had a mind to do it. apply that to the local police department. a police officer could abuse the

right of the, the power of arrest. could abuse the fact that he's carrying a weapon. that is not a reason to with hold the arrest power. it's not a reason to disarm police. and the hypothetical possibility that somebody who is of a mind to do it and has the time to do it, who considers that their job of preventing attacks is kind of allows for recreational use of 702, to abuse it -- i think is really unrealistic. >> so speaking of the privacy in civil liberties oversight board, which for those who don't know is a five-person board. correctly staffed by three democratic appointees and two republican appointees. presidential appointees, senatorially confirmed. that board has announced it's conducting a review of executive order 12333. which as ben powell said on the last panel, the charter of the

intelligence community sets out, roles and responsibilities, contains some substantive restrictions for example with prohibition on assassination. that report is likely to come out late they are year. let's talk about that from a legal perspective. in your view, does eo 12333 serve as kind of an independent grant of surveillance authority? or is it a structure for implementing existing statutory grants? >> i don't think it's, i don't think it has any grant of authority within it. or it is intended to do that. it's really from the standpoint of the intelligence community, i think it defines the lanes in which each of the entities within the intelligence community function. it doesn't itself grant authority. the authority is granted by statute. granted by the constitution.

granted elsewhere. but the executive order itself doesn't have a grant of authority. it has a grant, it has assignment of responsibility for exercising authorities under statutes that are already existing. and it, it succeeded as you heard in the, has succeeded as you heard in the last panel, largely because the components of the intelligence community get along. and that's, there's no such thing as an order that's going to enforce itself. and so it depends to a large extent on the ability of the people within the agencies to communicate with one another. and to be aware of one another's boundaries. >> let me press on that just a bit. some critics have suggested that eo 12333 actually expands beyond statutory grant, some

investigative authorities nominally or almost explicitly under article 2 authorities of the executive branch. do you think that's a mischaracterization? or is it fair to say? >> i think it's fair to say. it's well what i'm saying is it's a mischaracterization that it expands, expands authorities. i think what it does is make authorities that are already existing in statutes apparent. now congress could always pare back authorities if it chose to do so. but paring them back by executive order i think is a, would be a huge mistake. one of the gaps, obviously one of the gaps in 12333 is cyber. and that is something that we're going to have to deal with in the future. is probably going to have to be dealt with statutorily. when i went up to nsa and talked to general alexander, he said that he had the power, and the

authority to do something about incoming penetrations of, of the defense department incoming penetrations possibly of the dot-gov. i can do something about dot-gov, but if i detect something into dot-com, for the most part, the only thing i have authority to sit there and go -- it's going to be a bad one. >> i think that, judgment casey has it right. the last panel made this point as well. it bears repeating, it is executive order 12333 is not the source of any authority. it is a document, the foundational document that intelligence community that assigns responsibility to various agencies, within the intelligence community. and it does place important limitations on those authorit s

authorities. so it operates against a backdrop of constitutional article 2 authorities and statutory authority already granted so there's no new authority in executive order 123 33. i have to say within the intelligence community we probably have muddied this up a bit. we sometimes will shorthand refer to 12333 collection. suggests there's an authority in 12333 that that's denoting. really what that means is essentially it means it's collection outside of fisa. or outside of some other statute that regulates that type of activity. 12333 doesn't authorize that collection, but we will sometimes use that as a shorthand to say it's 12333 collection to distinguish it from what we were just talking about, for example 702. >> give us an example of one of those. just i mean there's obviously a larger audience in c-span land so give us a couple of examples of that. >> it's speaking generally

carried out, in terms of the surveillance activities, 12333 is broader than just surveillance, it's all intelligence collection activities and beyond, analytic activities as well. in terms of collection activities, you think about surveillance side. it would be conducting surveillance outside the united states. not against, not targeting a u.s. person. and not really, relying on the assistance of a u.s.-based service provider. so activities that are focused outside the united states. >> so a c.i.a.-safe house in aabadibad. >> where you're not targeting u.s. persons and not relying on u.s. internet providers based in

the united states. that's a broad swath of activity. what i just described is really, in large part, what nsa does, right? that's, when we talk about 12333 surveillance or 12333 collection, that's broad set of activities that just isn't otherwise regulated by something more specific like fisa. >> i think it's 12333 activity largely because 12333 assigns to nsa the responsibility of gathering generically that kind of information. based on the powers of the executive to defend this country. and obviously they don't need particular authorization to go someplace else in the world. and learn something that could conceivably be of value. to the u.s. government in defending itself. >> it's fair to say that you would characterize 12333 exclusively as an organizing document? not as the grounding source of any of the authority that is

exercised by any of the intelligence agencies? >> yae, except that it's important to also say it's an organizing document, but it's also a limitation document. so it includes restrictions and limitations on activities, which i think is really from the point of view of nsa operations, other than as you said judgment casey, the assignment of responsibility. for the nsa, those limitations that are part of the daily discussion that takes place at agencies like nsa about whether a particular activity is consistent with the executive order. >> let's put you both in the role of senior national security legal adviser to the next president of the united states. whoever he or she may be. they will look at you and they say -- i'm thinking about revising and reissuing executive order 12333. what of the restrictions in

there should i get rid of? i want to be more aggressive, we're in a heightened sense post belgium, post france, post lahore, in pakistan. what restrictions are there that can be removed without, without trenching upon constitutional and statutory limitations? conversely, are there any things in there that are restrictions we should add for good and sufficient reason? what's your recommendation? >> the only restriction i can think of that i might remove is the authority of nsa at least to pass on information about potential damage to the private sector, from hostile cyber activity. nsa is gathers signals intelligence, but gather it is

in an outward-looking fashion. and the restriction on even doing things like warning people what's about to happen to them i think is something that ought to be at least channeled. >> i agree with that, i think cyber is the area that 12333 does not address in a way that helps sufficiently guide the roles and responsibilities of the agencies within the intelligence community. that would be something to try to tackle. >> i do think that my first advice would be, you know, step cautiously. >> do no harm. >> first, do no harm. >> and remember, that these rules have evolved several decades, now going back to 1981, and maybe talk to ben powell and general hayden and others involved in the last effort and bear the scars of that. i think largely it works. in terms of the general body of restrictions including the basic

ones on prohibition on assassination. but also more importantly, i think more relevantly sort of saying that for example the c.i.a. is generally precluded of electronic surveillance in the united states. the fbi is the only group that can conduct physical searches if the united states. these are civil liberties-oriented restrictions that assign responsibility to particular agencies, given what they're good at. right? so the c.i.a. not in the united states. fbi searches in the united states. there's a lot of sense behind these. i would say step cautiously in trying to remove any of these restrictions, other than trying to tackle perhaps the cyber issue. so let's pivot once more to another kind of area this one is more speculative in looking forward a bit. but we're on the cusp of the development of a host new and

novel collection platforms, i would say. if anybody who has seen an eye in the sky, which by the way, is can i say it's a good movie? i liked it. i can't recommend it because i'm not an endorser. but yeah one of the things in there was a, was a drone the size of a beetle. that was deployed as part of the, part of the activity. which i understand is not quite yet operational. so we're going to look at drones, we're going to be able to deploy large-scale facial recognition technology. we're going to have large data collections that are capable of big analysis. broadly speaking, how should law approach that? are current laws sufficient, or do you think that the novel collection technologies are going to require us to update collection rules?

let's start with that as a general rule, as a general question. are our laws in need of modernization to accommodate new technology? >> i think generally, i would wait until the new technology. impinges or is seen to impinge actually, not potentially, not by somebody fantasizing about what's possible. but actually on somebody's privacy before deciding to to limit. also i think we have to keep in mind, there are other, other entities of government that have an interest in this, wholly apart from the federal government that is state and local governments. for example things like drones. there's talk of having the federal government be the sole regulator of drones. that -- i think is, i think it's a mistake.

that's not to say that federal agencies should not be permitted to use them when otherwise appropriate under statute. but to have one regulation governing, what goes on in the backyards of every state in this country, i think is a big mistake. >> i agree, sort of we ought to take this iteration, technologye you described with drones, the ability to amass and store large amounts of data about us. obviously we give a ton of that data to private companies. and so the question is how should law respond. an example i go back to earlier in our conversation, about 702. it took a while for us to update fisa, to respond to technological changes in the ways we communicate. and the law was basically

outdated. one lesson is that, it's not, it's really standard for the law to lag behind. technology. it's just going to be the case that we're going to be sort of catching up with legal rules to make them well adapted to the pace of technological change. so i would say that the fourth amendment has been around for a long time and has served us quite well. it has proven to be sufficiently adaptive and agile to continue to more or less be the right way to balance the competing interests between national security and domestic security. and protection of privacy. and civil liberties. so i would sort of caution trying to anticipate which direction technology is going to go. and try to make legal changes in response to that. i have another comment, but i'll stop at that point. >> you mentioned facial recognition technology. that obviously is going to allow for great advances in intelligence gathering.

and in solving of crimes. on the other hand-day want the government to have cameras on every corner and a bank of information about me and where i've gone every moment of my life? and be able to consult it? no, i don't. on the other hand, we are long distant from that. and long distant from the possibility that anybody would consider doing that. and that's not a reason to forgo the use of that technology. where it can be used effectively, to deal with problems that are in the here and now. without worrying about anticipating science fiction problems. >> let's stay on that because you're a good lawyer, great lawyer indeed. so now you're in the next administration and the c.i.a. director comes to you and says we can deploy this, we can start

capturing pictures out of cctvs that are in london without the brit's knowledge. let's make it in france. i take it that your expression would be in terms of foreign intelligence, no problem at all because we owe, we owe foreigners no protection from the fourth amendment. >> and the question would be to what end? you can capture it for intelligence gathering purposes. you can't capture it for recreational purposes. >> for the foreign intelligence -- paris is, yeah, i could make the argument pretty easily. paris has been now the target of three attacks in last five years, and is likely to be a target of more. we have a great database of pictures of iraq and afghanistan of known terrorists, we can create a good early warning system. we're going to have to incidentally collect of the

facial, facial pictures of every american who visits paris along the way. and minimize and discard. what principles if any should guide a program like that which is not necessarily too speculati speculative? >> you named two principles, minimize and discard for openers. if somebody doesn't match up to a list to a group of, of known terrorists, then you're not going to be, you're not going to be banking those images. you're going to use it to compare to people you already know about. not to simply gather to keep in a trove in case it should come up with somebody who you might want to trace. >> the rules under 12333, the executive order which require every agency that conducts

foreign intelligence, nsa, c.i.a., to have rules specific rules designed to protect u.s. persons, this is what the executive order requires. they're approved by the attorney general. so every agency, nsa, has a set of rules. u.s. person set of rules so in your scenario, the rules that would apply would be one, thaw can't search that data, for a known u.s. person unless you have probable cause, finding from the attorney general to search for that u.s. person. that is quite protective of the u.s. person. you can't use that data and search it without the approval from the attorney general. you can't keep information about a u.s. person for pore than five years and you can't disseminate information about a u.s. person unless it's necessary to understand the point of intelligence. the rules of the attorney general apply to all activity, including the type of activity you describe. >> do either of you think that the lawfulness of a collection

methodology is dependant upon the efficacy or inefficient casscy. which is to say at the backnd we're able to get more information out of the same data that has previously been collected? some have called this the principle of obscurity. that the data used to be too difficult to analyze so we current as concerned about over-collection, or alleged over-collection, because of an under analytic capability. today analytic capability is going through the roof, in terms of its possibilities, the facial recognition a good example. meta data analysis, another good example. does improvement in analytic capabilities, counsel changes in collection methodology? >> i think what it counsels is governing the analytic

capabilities. you mentioned meta data analysis. we had, before you know 215 got yanked, a meta data collection program that allowed us to keep a trove of telephonic meta data to be consulted only when we had a run in number that we knew was terrorist related. if in fact you limit the use of a database, in that way, you can take advantage of the analytic capability, and yet prevent for example simply data mining all telephone meta data for the purpose of drawing up a profile of a person. or for other purposes as well. it's how you limit your analytic capability, not how you limit data collection.

>> look at analyzing the fourth amendment reasonableness of a collection program depends in part on how the information is handled. how it's processed, how it's retained. so the answer to your question is yes, it is relevant to consider. it's important to consider how it's determined and to look at it under the fourth amendment. you don't have to look far for another example of this issue. and this is where the rubber hits the road a bit on this question of the ability of the government and not just the government, but of technology to analyze massive amounts of data and store massive amounts of data. there's a case that the supreme court ruled on in 2012 called jones, involving a gps tracker here in washington, d.c. metropolitan police department and fbi here in washington.

while the case wasn't decided on these grounds this was a case where the gps tracker stayed on a car for multiple weeks, 28, 30 days. 28 days. and some members of the supreme court were very concerned about the fact that this was a lot of data to be able to collect on an individual. even though that person was exposing themselves kbi driving around. >> so if it had happened for a day or two days, there might not have been such a concern under the fourth amendment. but the fact that that amount of data was being captured on this person for 28 days and the ability to store it analyze it, look for patterns and learn so much about a person's life, and implicate the privacy to that extent, that was a real concern for the court. we're at the vanguard of potentially relooking at some doctrines that underlie the fourth amendment, third-party

rule. that says once you turn information over, expose it to a third party, you no longer have a reasonable expectation of privacy. that would be a significant change. if you got to the point that we take another look at the third-party laws. >> you're all going to have a chance to ask some questions in about five minutes here, i'll save a little bit so think of questions you might have. a large fraction of what the intelligence community collects, it does not necessarily collect directly. it collects from third parties whether it's telephone operators or police departments or google or you name it there's a host of new collection platforms out there that are privately operated. that the government can tap into. often without, without much if any judicial intervention, because as you say, the third party rule that's been around since the 1970s, says that if

you've exposed this information to your bank or your telephone company, you don't have any fourth amendment privacy right in it. and the statutory rules often, have pretty broad national security law enforcement exceptions that allow ready access. the last question i would ask you to talk about is your prediction about whether or not that's going to change and your assessment of whether or not needs to change. or are you comfortable with the legal rule at least in a constitutional level that does not involve courts in the collection of information from third-party providers. >> yeah, i'm generally comfortable with the existing set of rules. i can anticipate the challenges that we will see sort of based on the cases, jones and the subsequent case called riley, involving a cell phone.

so i think the trend is one that we're going to have to watch carolinay. way as prosecutor here -- carefully. in d.c. for ten years. i can't imagine a scenario where as a prosecutor i couldn't go get a cell phone records for a suspect or bank records with a subpoena. but a subpoena is a relatively low standard relevance to the criminal investigation. but that's the risk of a criminal investigation. so changing that basic rule that once you turn that information over, you've lost that expectation of privacy seems to be fundamental of how we think about how we conduct at least criminal investigations. again though it's important to note that this is subject to a subpoena. there is court oversight to the extent that the chief judge oversees the grand jury investigation. there's the opportunity for people to challenge that. >> i do think it's a good question to ask, paul, we're going to see some efforts to change that rule going forward.

>> i would put my faith over legislative solutions, than i would a court solution, i used to be a judge and i hung out with judges. and i can't think of a group of people, most of them, poly-sci majors and history majors, less suited to making this kind of decision. by training. by their ability to gather evidence. they have no ability to gather evidence. they can consider what people put before them, period. they are not better suited. people may have more confidence in them. but that confidence may very well be misplaced. i think it's -- better, it's a responsibility better exercised by a legislature that has the ability to gather facts, in private when necessary. in executive session when necessary.

consider putting restrictions on how information is handled. rather than having courts cut with a meat axe, to determine what is or isn't reasonable. >> that's an interesting perspective. i'm just reflecting on that back to what general hayden said on the last panel about the growing lack of confidence thatter perceives the american public having in their representative institutions from making these decisions. now granted, judges are even less representative. but you've just premised the entire, well, the bulk of your response on somehow reviving that confidence in congress. i guess i agree with you, but that sort of troubles me in some ways. >> it troubles me, too. but to say that people don't have confidence in a representative government is not to say that we ought then to

turn it over to somebody else. because people have lost confidence. i think the answer to that is pull your socks up and get yourself a government worthy of confidence. >> the last thought on that, we have experience with exactly what judgment casey is talking about, going back a number of decades, smith versus maryland supreme court ruled that you don't have any expectation of privacy in the numbers you dial. the numbers that are dialled into your phone. under the fourth amendment, so congress acted and adopted, and enacted a statute that regulated the government's ability to obtain access to that exact type of information and establish a regime of court approvals based on a standard that even though it wasn't required by the fourth amendment, it does, it does further the privacy of libt earth interests of americans, it's actually a good paradigm for addressing the kind of examples you're describing.

>> i've got plenty more questions, but we've got about 10, 12 minutes left. and i thought i would invite the audience to participate. >> tim wilson, american citizen, british veteran involved in counterterrorism. it seems to me that we're not the only country that has problems like this. britain, too, has been through a fair amount. back in the late '70s, early '80s, the provisional ira was bombing in the mainland. one of the solutions that came up was the city of london realized it was incredibly vulnerable at the time. it was the most expensive real estate in the world. it was private enterprise that installed the first huge network of cameras with facial recognition software. all bought privately initially by various companies around there for the metropolitan police. actually the city of london

police. britain still seems a pretty free country. i'm delighted to see this debate going on. but it does seem to me that there may be some element of reinventing the wheel. prepares we could look at other nations, we're not alone in this. your thoughts, please? >> london has the most comprehensive network of cameras anywhere in the world. i had not known until just now that this was provided by private enterprise. originally. we're now of course having a bit of a tangle between the government and private enterprise in another setting. but sure, i think we can learn from it. and we can learn from the fact that people go around, go about their business in london, perfectly relaxed about the fact that cameras are focused on them because they know that although the camera may pick up their image, there isn't some, some

public official sitting in an office someplace monitoring their particular activity. that's the distinction, it's not the gathering of the information. but rather, how it's processed, who processes it and for what purpose. so long as it's being processed, only in a rare number of instances, for a perfectly proper purpose, people are perfectly relaxed about it. >> in the front here, sir. my name is nishikawa, japanese security consultant. my question is to mr. olsen. my question is the very simple. how ought national counterterrorism center cooperate with homeland security

with japan for cy counterterrorists. >> the question is where i was at the national counterterrorism center, how do we conduct information sharing with japan that can make it more broadly, other countries. so when i was at the national counterterrorism center. we weren't the main way that information gets shared on counterterrorism that really is largely done by the collection agencies themselves. the c.i.a. and nsa and fbi with their counterparts. since they were the initial collectors of the information they understood who to share it with, what the rules would apply to the sharing of information. that said, we had strong relationships with japan and particularly countries in europe and elsewhere in asia on the counterterrorism efforts. so what we were often sharing was analytic products. we would analyze the information that was collected and we had a rigorous way of sharing that

information. with other countries including japan. >> hopefully the counterterrorism center, the information to and to office defense -- [ inaudible ] >> to japanese cabinet secretary office. but my perception that route is very -- continue. then c.i.a. or fbi, each cooperate with the japanese national police or other kind of agency in japan. >> right. thank you.

i think -- i mean it's a good perception that sometimes coordination is not as, as well directed as it might be. >> thank you, dorisiz izeisen, typical housewife. as i listen to this, i don't think the american people have no more faith in the law. but the question we have is, when the law remains consistently the same, but policy changes, as it's about to, executive policy, big-time, how does that policy change affect people at your level in terms of where you draw the chalk line. interpretation of the law and what candidate k and can the no be done. are you personally affected by

new policy at the executive level? i think that's what frightens people that we don't know if we are protected, protected by the law, but reinterpretation of the law, i would assume you guys would continue your integrity no matter what the executive pressures are. but i hope that's the case. both of you, either of you. >> the policy determinations are made by the political branches and the people who are selected to staff them and the people they appoint. the law remains, is supposed to remain constant. you get a policy request from either within, within the department an entity outside the department usually goes to the office of legal counsel. they answer questions every day.

can we do this, can we not do this. the policy is supposed to be what our democracy is about. it's supposed to be the basis on which we choose leaders, they will apply this policy or that policy. but they will apply it in a setting where the law is supposed to remain the same. >> i would just add i do think your question is reflects this view. that many people hold that what we've learned about in the last few years. is that the intelligence agencies were abusing the authorities that they had. and i think that's really unfortunate. i served as a lawyer at the justice department with judgment casey and at the nsa and i think that's not the right perception. there was not an abuse, reports like i identified from the privacy and civil liberties oversight board said as much, right, independent reviews.

what my experience has been is that these agencies are working very hard to stay within the bounds of the law, and that if anything, lawyers play a greater role than ever before in channeling, controlling, directing, guiding intelligence activities, that's generally been a positive thing. and that the perception that nsa for example was run amuck, in the last five years, is just, it's a false perception. >> my favorite is, it's the famous shakespeare line, first thing we do, let's kill all the lawyers. but it's said by somebody who wants to disrupt and create chaos in society. and he thinks killing the lawyers will eliminate the glue that kinds of keeps and binds the society together. that's matt's job. he's the glue. this lady here and that gentleman there and i think that will probably take us to the end. >> yeah. claudia rosette, i'm a journalist. i have a question about --

>> that's an understatement, folks, she's a superb journalist. >> thank you, guys. i have a question about the broad scene. you've been discussing here these detailed fine points of how to insure justice, follow the law, what should be done. and yet you get sort of following on, i follow on the housewife question. these sweeping policies where we see the rise of isis in sill siria. we see iran having access to enormous amounts of money and markets and mobility and so on. all of which affects things like the terrorist threat in this country. in major ways and here i just like to ask you, in one sense that may be a good employment program for the intelligence community. because the job then is to try to further counter it. but is there a rising frustration that makes it at some point difficult to get good work done? in other words, meticulous crafting of things to try and track down these threats, and

then broad-brush policy that engenders massive amounts more inside the intelligence community, how does that play out? >> i think your question suggests -- a reality which is the threats we face are in some ways expanding. they certainly are becoming more complex. just looking at the terrorism side of the national security picture for a moment. the number, the spread of jihadist groups has grown. and so the threat in some ways is going up. and at the same time our capabilities are going down. so the trend lines are going in the wrong direction. that is certainly a source of frustration for people who are responsible, who are charged with protecting the country. to put it a little more -- one of the reasons our capabilities are going down is because we explained so much, we've given away, not so much explained, but

let loose so much information about how we conduct surveillance. that's a critical way in which i saw the intelligence community lose capability to conduct surveillance of terrorism targets so we've lost capability at a lost capability at a time when we needed that capability more than ever. >> we're talking principally here about the snowden disclosures. >> yes. >> invaluable for our enemies. gentleman over there. >> hi. i'm andagreni. i'm a entrepreneur where i can move things along a little quicker. i'm curious. where can intelligence agencies -- how and where they cooperate with the private sector and we can think about apple and the fbi if you want to do that or just speak more generally. >> matt? >> sure. so this is -- among the negative

repercussions of the snowden leaks from my perspective, the most damaging is the impact on the cooperation of the private sector and the government when it comes to protecting the country. you identified one but it is really across the board. i mean, it's been critical for the intelligence community to be able to take advantage of the innovation and ingenuity within the technology community in the united states. and if that's not available to nsa and cia and fbi, that will make us significantly less capable. you know, i think we have made back some ground. we have regained some ground we lost in terms of the rust of the american people and our working relationship with our allies. where i think we still have a long way to go is with the technology community and i think it's cause for serious concern. >> yeah. i think actually i'll use the moderator's privilege and say i think it's really an interesting

development when people sound like they're more likely to trust a large private company to defend their freedom than they are their own representative government. i mean, that's a description. not a critique. and, you know, maybe that's where we are right now because of some of the snowden revelations but, you know, it certainly isn't consistent with the madisonian tripart model we were talking about earl yerl. so with that, it is 11:55. we are going to take a five-minute break and then come back for our keynote lunch address. please join me in thanking general mukasey and matt olsen for their wonderful -- [ applause ] matt, you get a tie. >> thank you, sir. >> a heritage tie.

>> as you heard, there will be a brief break in this multi-panel discussion on intelligence and national security. hosted by the heritage foundation here in washington. former cia and nsa director michael hayden was among the speakers earlier to. shortly a keynote address of congressman mike rodgers. we'll have it for you live here on c-span3. before we get that, though, here's a brief look at the prime time programming coming up

tonight. >> this week on c-span, we're featuring programs on the increase of drug abuse in america and the situation of the current supreme court vacancy. today at 7:00 p.m. eastern, with the abuse of prescription drugs and heroin on the rise, we look at the government's handling of the issue from health experts, former addicts and the u.s. senate. including comments from president obama and presidential candidate ted cruz. >> it's certainly not going to be washington, d.c. that steps in and solves these problems. it's going to be friends and family, chrchs, charities, loved ones, treatment centers. people working to help those who are struggling to overcome their addiction. drug addiction is a disease. >> so i made this a priority for our administration. in 2010, we released our first

national drug control strategy. we followed that up in 2011 with a prescription drug abuse prescription plpr preprengs van. we're partnering to reduce overdose deaths, help people get treatment. >> and thursday at 6:00, an apparent impasse between democrats, the white house and republicans, over the next supreme court justice, we look at what today's leaders have said in the past concerning the nominating and confirmation process of individuals to the supreme court. >> in my view, confirmation hearings, no matter how long, how fruitful, how thorough can alone provide a sufficient basis for determining if a nominee merits a seat on our supreme court. >> a thoughtful senator should realize that any benefits of borrowing an ideological opponent from the court are not likely to outweigh the damage

done to the court's institutional standing. freedman goes on. ideological opposition to a nominee from one end of the political spectrum is likely to help generate similar opposition to later nominations from the opposite end. >> those are some of the programs featured this week on c-span. tonight on c-span, the supreme court cases that shaped our history come to life with the c-span series "landmark cases the: historic supreme court cases." our series explores stories and dramas behind some of the most significant decisions in u.s. history. >> john marshal said this is different. the constitution is a political document. it sets up the political structures but it's also a law and if it's a law we have to courts to tell what it means and that's binding on the other branches why sets dred scott

astart the fact it's the ultimate anti-precedental case. >> who makes the decisions about the debates and lochner versus new york, the supreme court said it should make the decisions of those debates. >> tonight, the case that limited privileges of citizenship guaranteed by the newly enacted 14th amendment to only those rights in the constitution. the slaughter house cases. back at the heritage foundation now for the continuation of a multi-panel discussion on intelligence and national security. up next, keynote address from congressman mike rogers, former chair of the house permanent select intelligence committee.

>> well, welcome back from that short break. i hope you enjoyed the second panel as much as i did. we're going to continue the conversation and i'm particularly pleased to have former representative mike rogers to give us his viewpoint now from -- as a former member of congress and a key post. we have heard from two panels really giving you the view from the executive branch perspective and we are building our way to the last panel which is the view from inside the white house from the national security adviser and how the president actually uses intelligence. but for now, we have a lunchtime treat for you.

and my friend mike allen is going to be giving some framing remarks and then we are going to hear from congressman rogers. mike started his career at the republican national committee. he worked for senator sessions. after law school, he worked for president bush in the white house national security area. and then, for about three years he was at the hipsi as the staff director and can't think of a better person to introduce our keynote speaker than mike allen. [ applause ] >> thanks. to heritage for organizing such a great event. it is an honor to introduce my former boss and a future national security leader, mike rogers, former congressman and chairman of the house intelligence committee. i want to speak by way of introduction for a few minutes about chairman rogers' time as chairman of the house

intelligence committee. he was a strong, conservative voice for conservative internationalism, a strong national defense and an aggressive and fair intelligence community. himself once a man in the field as a fbi agent, he knew what it was like to be around the campfire and to be at the tip of the spear and he brought those instincts back to washington. when i was his staff director, and chairman rogers, of course, when he was a member of the committee, had a reputation for jumping on c-130s and going down range as it was called to different places where our intelligence community officers might be serving. chairman rogers was really unhappy when i had to be the one to explain to him the intelligence community for reasons of security was unenthusiastic about some of his qulds to go down range while he was chairman of the committee.

but the main point is that he was never content with the party line in washington and always wanted to go out to the source to get the real story. and through that experience won the confidence of the men and women in the intelligence community and was able to, therefore, earn their trust so they would give him and by extension the committee the real story of what might be going on in the war on terrorism or our struggles with china or with russia. i just want to give just two or three examples and i'll swiftly turn it over to the keynote speaker, but the first example i think and a great example of what you can do when you're on the intelligence committee as a member was the role that chairman rogers played as a member before he was chairman with regard to the war on terrorism. he is a member of the committee, became aware of sort of a misalignment of resources and some of our direct action programs and lobbied very hard

all the way up to the president to try to correct what he saw as some rule of engagement issues and some micromanagement that was hurting the way the national security operation was running in the united states. he brought this attitude to the chairmanship and i think when president obama's and some of his directors became weighed down with rules of engagement and other micromanagement issues was able to take their concerns directly to the director. in some cases, over and over and over again. on a couple of occasions, it was over dinner and i was relieved that there was wine served to sort of calm the atmosphere there. chairman rogers also knew when things needed a good airing in the intelligence community. i think history is going to show that he was one of the ones that really broke the dam on chinese

economic espionage. he spoke out on this in our worldwide terrorism hearings in 2011 an 2012 which i think history will show really started the moment in which people began to talk about the thievery and the pilferage of our intelligent property. the last thing i wanted to mention was chairman rogers was a friend and a real compatriot and man that listened to what people deep in the intelligence community were telling members of congress and in the case of chinese telecommunications giants that seemed to be growing across the world, chairman rogers announced an investigation of zte and put out a report i think educated people around the globe and indeed you can't read an article about with a way or zte today without a reference to the report that chairman rogers and mr. zuper burger put out warning of this

element of a rising china. finally, in the age of knowden, when so many people turn tail and wouldn't defend the national security agency, chairman rogers stood tall in the saddling and helped explain to the american people the need for great intelligence and why it was so critical to our national security, our diplomacy and for giving us indication and warning across the globe and this was at a time when it wasn't popular to stand up and it certainly at a time when the president wasn't necessarily doing all he could have been doing to wack soback our men and women in the intelligence community. he was a tough critic of the intelligence community and was certainly went after them on budget matters and authorities and like i said earlier, on areas where he thought there was too much micromanagement but i think his chairmanship will be regarded in history as one that sort of re-established a tradition of aggressive but fair

oversight of the intelligence community. and, therefore, i'm pleased to introduce the chairman here today, chairman mike rogers. thank you. >> gosh, i wish mike was that nice to me when i was chairman. that would have been great. would have been a much better relationship. i'm fortunate. i see some former staff folks here. i think we had assembled at a time in history some of the most able national security people in this town and in this country to help so any success that i had was led by my staff director, as well. and the able team that he put together and i was always honored not only to call them colleagues but friends, as well, what i thought was very, very serious coursework trying to get the intelligence business right and i also want to point out that the quickest yes i think i ever got was david shed said, hey, would you participate? he is a guy that -- whose

integrity is impeccable, i had the great privilege to work with on the intelligence community and it was a loss when you left and believe me there is still a hole there that is yet to be filled with your experience and your intellect that you applied both at the cia and the dia and for that service i want to say thank you very, very much. i thought i'd talk a minute and get to questions just a minute about why we are. the other day, i was with leon panetta and we were at an event and somebody asked, when's the biggest threat? what's the biggest threat facing us today. and you have to stop and pause and look at the world and certainly changed. the security structure of the world, the threat matrix has significantly changed. just in the last few years. so i thought about it for a second and i said, one issue, one thing scares me more on all of the land, air, sea, cyber, space threats that we now face in ways we couldn't even

contemplate 15 or 20 years ago and that's miscalculation. what if we get it wrong on north korea in what if we get it wrong on some maritime kind of conflict, small conflict in the south china sea? what if we get it wrong on the iranian new apparently missile testing program they're very proud to show the rest of the world? what if we get it wrong? what if one of our allies gets it wrong? they make a mistake. you know, the japanese are very eager to push back on the chinese in the south china sea and when we were having meetings with the japanese there they were very aggressive about wanting to show that they could push back against chinese aggression with the united states help but they wanted to lead that charge. now, you have some kind of a conflict, small conflict, you know, we already see that chinese planes brushing up against our allies' planes, our airplanes, our ships. what if that miscalculation

can't be put back in the bottle? and you have a conflict that rages out of control. and i say that because the threats are too -- we could spend two hours today talking about the threats. i give cyber talks all over the country and normally my job apparently to scare the bejesus out of people and what's coming and how bad it's getting but one way we the united states have a way to leverage away from the miscalculation, a diplomatic corps engaged everywhere in the world all the time, and secondly, is good intelligence. now, intelligence in the last couple of years has certainly taken a beating by reputation. i think completely undeservedly. you think about where we are and what kind of problems have been caused, i think by nation states dividing that intelligence services are bad. i argue that europe is suffering a hangover of world war ii. they geared their laws on what the activities of their

intelligence services based on what they witnessed and suffered under intelligence services whose business it was to oppress their populations. so you can't blame them. you can't blame how they got there. and when you look at what happened just in brussels as an example or paris, even the united kingdom, you can see where that -- those rules, those laws, those restrictions are pushing in to the strategic value of intelligence services protecting its population. right? intelligence services are bad was their fundamental building block. well, this's not going to work. look at a great example on that recently. belgiumcon this brussels and brussels candidly leading that charge many ways on restricting the ability of law enforcement and intelligence to do the kinds of operations it needed to do to keep brussels safe, to get the information, at least on a counterterrorism threat, for sure. and so, what was happening is

european nation, other european intelligence services decided that there was lots of threats, threats to this particular country, these folks were coming through great britain, according to public reports, going to other places across europe, they needed information on these individuals as they traveled across europe. so they decided, one way, again, according to public reports to go in and try to get those communications, follow those individuals across europe by going in to one of the telecommunications companies with lots of access to those kind of target sets. and it was belgiumcon. so the snowden leaks come out. they say, oh my gosh, this intelligence service, great britain, is spying on europe. how awful. how terrible. we need to really gear ourselves to closing it down. to tightening down the ramps. so what happens is all of the information that the uk was collecting was dispersing, this

is a great article on this you can read in some of the british reporting, talked about the value of the information that they were getting that they could go back to brussels intelligence services and police agencies and say, you have a problem. you don't know it. here it is. they could go to places like paris and say you have a problem. by the way, here it is. they could go to places like germany and say, you have a problem, here it is. that went away. we decided through this or the european union decided through big investigations to target the intelligence services ability to collect information which was lawfully and appropriate by their own nation state laws and collection standards to protect both their country and the added benefit of that was across the european union. so think about that debate. in that same time period, so this happened, it was exposed in about 2014, that same time period there was this huge

ramp-up of fake passports. the thai police had an arrest about -- i'm going to guess -- late 2015 on an individual who was iranian, traveled to thailand on a fake passport, he stays in thailand for about 20 years on a fake passport. his sole purpose in thailand was to engage in the production of fake passports. his number one clientele is middle eastern clients seeking passports to get into europe. when they arrested him, and it was all a fluke how they arrested him, by the way. old-fashioned as a fbi agent, gum shoe. not a big intelligence operation. somebody found a case of resident stickers going to a place through a random inspection through a customs house. that's how they got on to this. this guy's there for 20 years. they came in the door. they had a thousand passports ready to go. 173 were already named, i.d.ed,

and by the way, they had visa stamp s already through the fak passports and they were exceptionally good. exceptionally good. one place. pakistani ring was operating in greece for the last about five years. they broke up a ring recently and how did they get that? same way. somebody in syria was mad at the competition. they were sending a case of these resident stickers, right, that were immaculately close. right? so good. so details. so accurate. that was going in with adhesive on the back, all you have to do is take it out of the box. excuse me. put it on the passport. you are ready to go. you are now legal in greece and if you're legal in greece, as you know, you can go other places, as well. right? the reason they got on to it wasn't the great intelligence work and work and people trying to figure out what bad things are trying to happen to these countries. it was somebody got jealous

because another ring had opened up and in syria the guy, here's a big case coming in to greece. you ought to take a look at where that goes. hangs up the phone. we used to love those cases in the fbi, right? that's always great. you want that cooperation. but that's not a way when you're under siege to protect your nation. strategic intelligence can help you do that. unleashing the power of these intelligence services to actually find out what they can do versus all the time and energy we spend trying to tell them what they cannot do and we miss that boat and it happened here a little bit in the united states. we saw that same suffer. the president issued a directive that restricted certain collection activities in the united states. we're going to pay a price for that. i argue in many ways we have already paid a price for that because of that restriction. again, the political debate is how do we restrict the big, bad intelligence agencies from doing something big, bad and awful?

everything was legal and appropriate. even the president's review teams were external. all found that they were legal and appropriate. congressional investigations found that they were legal and appropriate. now, might not have liked what they were doing. that's a different topic. but there was nothing illegal about it. but in that debate, in that nsa contract or the leak of massive amounts of information we got a hangover and think about the threats today. think about what's going on today. the russians are certainly on the march. and what we see in russian change of policy on cyber ought to give you a bead of sweat. they have fundamentally changed where they're coming after us. they have gone into a place like ukraine and shut down the electric grid. it wasn't connected the way our electric grid might be connected so they basically went back and as i joke before got in a little trouble for this.

love my yue yanian friends. they pulled the lawn mower start button on the transfer stations, fired them back up and they personally man them and they're running and got the power on after a massive attack. we could not do that. we could n't do that. it would take a very long time and when you start to see russian policy change on being more aggressive on cyber, especially coming to destructionive attacks overseas and doing activities in the united states where it's clear they don't mind that the signatures are found, that tells you better pay attention. we have a strategic problem now in cyberspace. they've launched very sophisticated nuclear submarines. they're talking about reasoning more runs up to the arctic. we announce we'll cut the standing army by 40,000. we announce four months later sending 40,000 -- i'm sure it's coincidence, in a training exercise in the arctic. strategically we need to

understand what the world is thinking. that's how you avoid miscalculation. what are the chinese thinking by for the first time in their history announcing by parliament last year that they were going to allow chinese troops outside of their defensive region? and when they did that, they passed it in the parliament. this year, sending troops to jab you ti. they have upped the silent submarine ka shay to a way that's disturbing. they have invested in militarization of space to try to take away a strategic advantage for the united states of america. they have missiled, countership missiles, that make our navy folks very, very nervous. why? they're basing their strength on what our strength is. in other words, they're going after our achilles hill. gpts, concerned about russia and china militarized space in a way

to disrupt the gps. you think of the united states of america. we have smart weapons and smart ships and smart aircraft and everything else that's pretty smart. it's got so bad in the navy worries about this and worried about it i argue you ought to worry about it, every new naval officer after 2017 has to learn to use the sextant. all right? developed in 1724. all right? every new naval officer that graduates has to use the sextant. why? because the military is concerned when the carrier gps goes out. i know what you're thinking. how do i get to starbucks? that thing -- can you imagine 30 million very cranky noncalf nated americans in the morning? we will have a problem. be serious. so if you look at those strategic threats and how that tilt has happened, and many start to argue and a lot of circles around both in this town and around the world, about

america's loss of strategic advantage in the world. now, some would argue it's little. some would argue a lot. some argue it's ten, 15, 20 years out but our adder versari are working every day they get better and we don't. every day they engage in strategic espionage and we don't, think of that. the cia director said that the cia does not steal secrets. i don't know about the rest of you. that scared many e to death. as a fbi agent you don't want the fbi agent stealing secrets but you want your cia stealing secrets. and that tells you that there might be a little bit 0 of a strategic problem and how we're approaching strategic intelligence. if you're not stealing secrets how in god's green earth do you know what chinese military leadership's intentions are? when they show up in gentleman beauty, we need to know what are their intents?

you do that to avoid miscalculation. people were upset. i wasn't one of them. maybe we were looking at the good friends and allies on an occasion in the intelligence business. you do that because sometimes your allies get you more trouble than you can get in yourself. you think of the defense pacts we have around the world. what if japan decides they want to be aggressive with a chinese convoy? all right? we ought to know that. we ought to know that. what if the filipinos decide to be aggressive on pushing back without coordination of the united states? we have a defense pact with the philippines. shouldn't we know that? shouldn't we know that germany had relationships with iran prior to the iran deal? i argue we probably should know that. shouldn't we know what they're thinking after the iran deal? i argue i would like to know that. if i'm a policymaker whose finger is on that button, if i'm

deciding how use the intelligence to avoid trouble, then we need to be as aggressive as we can in accord dance with the law. so we're in this hangover period is basically where i think we are today. we're still hung over. we're trying to figure it out. fbi beats up apple. apple beats up fbi. completely inappropriate in my mind. there is no path forward. all's that's happened now is they found a solution that doesn't mean they have to go to court. fair enough. all of those policy discussions are going to have to happen. and this is what worries me most about our strategic alliances in the world and the value of the intelligence collection we get. self restrictions. big problem in the u.s. intelligence collection. for really not great reasons. not because we find anything illegal but because we didn't feel right. okay. bad call? interesting decision. not great for our strategic value in trying to avoid miscalculation but when you look

at the alliances of economics and security, in the world, some of them to are starting to part so why does apple, great example, locally say we're for encryption. fbi go stuff it. we don't care that we have the ability to get into a phone that might have information to save other american lives and lead to the full investigation of the death of 13 americans. because their economics have not aligned with our national security. they need to sell the devices in europe. they need to sell the devices in china and in asia. and so the security and economics of that problem did not align. and if you look at some of the changes in world demographics, one of our staunchest allies in asia is australia. australia's about 25% of their gdp is related to exports to china so now every time you have a national security discussion with australia about how we push

back the chinese in the south china sea, they pause for a minute. now, they're still one of our greatest allies and they're not going anywhere but you can imagine the challenge now of trying to get to a place where we have a common decision matrix on how to push back either militarily or with intelligence when 25% of their gdp comes from the nation state that's at question. the national security posture and our economics didn't quite align. and so, i argue the reason strategic intelligence, the reason an aggressive intelligence posture is important and why we ought to go through every line and every personal and presidential directive when we get the opportunity, every -- i know they debate it 12 triple 3. i think there's restrictions we can probably improve on. we ought to go back and say, what serves u.s. interest and what serves the world's interest, by did way? and we should stop apologizing

for helping europe because we had an aggressive intelligence campaign that may have found the culprit or a new cell or the fact that, say, the taiwanese able to get passports that were used in thailand packaged through syria to get people in to europe. all right? we call that a good day's work in the intelligence business. but none of that happened because of self imposed restrictions either by the europeans or us. when you look at belgiumcon, all right, so now we took a major resource of finding bad guys traveling through europe and we took it off the table in 2014. how many in belgium today would like to have the ability to get an intel share sheet that said, hey, you got a problem brewing in belgium? here we found them because they're talking to people in france who are talking to people in great britain who are talking to people in syria. we lost that. and for what appreciable reason? i argue really none.

caused a lot of problems. big investigations. spending a lot of time beating up the intelligence services. not a lot of time catching folks with fake passports. i was -- it was kind of interesting the residence per t permits case is fascinating. when they got it through cust customs, remember the stickers prepackaged in they do the ruse of the customs inspection. oh, we found it. i yoozed to love that in the fbi. you remember those? we love those. whoo. look what we stumbled on. wink-wink. and so you get there. they follow it back. there were 4,000 of these resident stickers in this box, one box. 4,000. 4,000. right? and when they got to the place, there was something on the order of 20,000 documents being prepared in a forgery factory in the back shop of a front operation. some 20,000. one operation. one operation. all right? and just gives you this

magnitude about how important it is that we stop beating ourselves up and looking what we're not doing right and look at the things that we need to do right as we work through this process. i tell you another great example and then i want to take some questions here. on the entities list and michael mentioned what i thought was a fairly groundbreaking investigation on the committee into with a way because we had pretty good information that the chinese were engaged in a nation state craft, espionage craft of trying to get a company that is a chinese company in to markets where they could collect information. so it was one of the largest operations to collect information against either -- both u.s. targets but it was asia, it was europe, africa. you name it. they were very, very aggressive. what happened recently, i don't know, michael, if you saw this. pretty interesting, the commerce

department -- this is why this strategic investigation and that report by the way freed up some of our intelligence services to be more aggressive in their investigation, right? this is how sometimes politics gets in the way. just put zte on the entities list because of a very complicated conspiracy to violate export rules in every country you don't want things going on. north korea. somalia. iran. and other places around the globe. and what was interesting in that investigation as it was determined -- you can find these papers on the department of commerce website and if you really are interested in this stuff, i say do it. read the chinese version first. that's how i know you're really serious about this. and then they have the interpret preation of the document. what they were doing is zte and chinese company was working under with a code name of another particular company and these documents it's called f-7.

they were working with f-7 to further the conspiracy on trying to get these units into places where they could own the pipes and when you open the pipes you get to look at everything in it. they were trying to do it in the united states. very aggressive. they were -- they were successful in a small way in the united kingdom. trying to do it in australia, canada. i'm sure you find these interesting countries of target. new zealand. find that interesting. all five-i nations. very aggressive. still trying to work in the united states. they foubld out in the investigation that f-7 was wawei. so much for the denial that these weren't intelligence operation platforms trying to get in to the united states of america. without aggressive intelligence and strategic thought in how we apply our resources we get behind the eight ball. there are more spies in the united states today from foreign nation states than at any time in our history including the

cold war. more spies today and they're stealing everything. if it's not bolted down, it's gone and if it's bolted down give them about an hour. they'll figure out how to get that, too. they're doing it through human operations. they're doing it through cyber operations. they're stealing intellectual property at a breath taking rate. they're stealing government secrets at a breath taking rate. anyone look at the recent chinese fighter? looks a lot like an f-35 to me. as a matter of fact, one of the great fbi cases of the last couple of years was catching the chinese trying to steal silent technology on submarines. caught them trying to export that material through a long term spy operation on the west coast. very -- fascinating case that i would highly recommend you go to the fbi website. they have a lot of these listed in these cases. so they are aggressively using their espionage networks against

the united states an think of the debate in the last six months here in the united states. right? well, the government is bad. all right? i think mukasey said it best when he said pretty interesting that we think these private companies are going to handle your private information better than your government which i find interesting. we always joked in the intelligence space, we would love to get one tenth of what google has on you. unbelievable. right? and so, the fight has been i think in the wrong direction. how do we appropriately protect privacy? fourth amendment. it tells you how to move forward but now is not the time to curtail the strategic value in intelligence. if you want to avoid that misclmi miscalculation, we better know what zte and russian front companies are doing and understand what they' trying to do in arctic and putin in syria. not just on paper that's where his troops are on a map but what are sbhis intentions?

what are the iranians trying to do and how far will they push the united nations on missile testing? we better know that. we all better know that. or we're going to pay a horrible national security price. thanks for having me. i think i went over a little bit. going to some questions? comments? concerns? lunch? yes, ma'am? >> on the iran deal, is there any way to put the genie back in the box? >> oh, look at the time. no. let me tell you why. two things i thought, obviously, i didn't support it. there are some good components in the iran deal. the problem is we have given away every ounce of leverage we have. this idea of snapback provisions isn't accurate under the law. there's a provision in the deal that talks about grandfathering any contract not specific to the

nuclear program. all right? so which means if it doesn't do with aluminum tubes and has to do with car parts, that contract will stand. which is why you see this huge flood of inking contracts as fast as they can. we have a great american company there trying to ink a contract as fast as they can. it would be a huge deal to this particular company. once that signed, some notion that the united states is going to go back and undo those contracts when the deal says very specifically has to be related to the nuclear program, i think is fairy dust and the argument -- as a matter of fact, i had this debate last week on the west coast with one of the -- who, by did way, a great diplomat and very smart -- wendy sherman. we passionately disagree on the arrangement and the deal. the response was, well, we will reclassify those contracts. i don't know about this. i know there's lawyers in the room. somebody want to step me through this? the deal says one thing. they want to reclassify them.

good luck with that. it's not going to happen. so part of my fear is that we have just lost all the leverage to try to contain them and why they stepped up the missile program. three parts of a nuclear program. they have weaponization. enrichment. and missiles. they just ramped up the missile testing very clearly. they get to have an enrichment program now. it's legislate tized and i think they have whatever it was? 5,000 centrifuges spinning at any one time. you can do this through computer models in a way you don't have to have the trigger point. you can go a long way under weaponization. my argument is if that was our goal then we swung and missed. i don't see a way now to get it back. what we will have to do is continue to put pressure. the next president said he'll rip it up. that's not realistic.

yes, sir? >> my name is -- a member of reagan foundation. do we have enough information on north korea because of nuclear weapons there they're developing? >> do we have enough? anybody in the intelligence business will tell you we never have enough. no. i don't. and so, they were able to do some things i think that were -- that happened under the nose of many intelligence services, including ours. so they had some advancements that i think caught our intelligence services a little bit by surprise which tells you that they have been very, very good about making sure that those operations are very, very -- you know, the cover of those operations is pretty intense. so we have some things they can go through on checklist it is try to figure out if you're doing something bad. you have to do the five things, let's say.

you see one or two, maybe you see three but you never see four or five until this last hydrogen bomb so-called hydrogen bomb explosion. i think that caught a few people off guard. and it just tells you. it's a very hard target, hard to penetrate which is why the invest independent that strategic intelligence component which means all of the -- all of the avenues we have available so it could be satellites, signals intelligence. has to have a human component. you know, these are big, expensive programs all of them but i argue if you want to avoid something big and nasty down the road you better invest in this and use it up front. and hopefully that woke china up a little bit. they have economic leverage in the black market on their northern border that's never talked about. if you want to hurt north korea, you have the chinese cooperate with us on closing down the black market for goods and services crossing that border in the north. problem is china's in an

economic downturn and i would argue good luck with that. yeah. yes, ma'am? >> hi, my name is dee. i'm a lawyer here in wards. you said that we have more spies from foreign nations in this country than ever before. how do you know that? >> that's what the intelligence business is designed to do is determine that we have jinlgs here who are engaged in espionage activities and so if you look at the -- so everybody does it a little different. you know, the russians tend to have professional intelligence officers. the chinese do it a little different. they recruit people that aren't necessarily intelligence officers to perform intelligence activities when they get to the united states. and if you look at the rash of indictments and prosecutions recently, especially on the chinese program, it really starts to highlight how they go about doing their business and how these folks are not necessarily trained intelligence

agents and officers. they might be engineers. they might be fill in the blank scientists of some sort who are sent for a very specific goal of stealing a very specific piece of intellectual property. it is a very, very difficult thing for our fbi to get their arms around because it is massive. it's huge. and the numbers are a little bit overwhelming. so you can see it on the russian front. you can see it on mois folks from iran. their activities here and the reports that you would see come through certainly you start adding up the numbers and it's clear that their activities against the united states have increased. and we have -- i'm not sure we have adjusted quite correctly on the way we're going to respond to those activities here in the united states. yes, ma'am? >> thank you. hi, i'm a lawyer, also, but i was a former naval reserve intelligence officer. i thought your comments about zte and wawei were very interesting and so my question

is about the interplay of congress and the executive branch. as you noted, zte was put on the denied parties list by the department of commerce but a few days later major retractions occurred or what were perceived of retractions between the interplay of economics and security and so could you talk maybe a little bit about solutions, some ways forward to repair what's happened to the intelligence service and the role that congress can play to rein in some of the inconsistent actions that the executive branch takes that, frankly, seem to be shooting us in the foot? >> yeah. and this is a problem when, you know, your largest banker, right, never punch your banker in the nose is the old expression, and this is a problem for the united states. so, you know, if you want to take a wholistic approach, this is why many of us talking about getting to a balanced budget over time. we stop borrowing money from people who have ill intentions

not necessarily from an aggressive one on one on flikt and if you think i'm saying that, please don't. they're just going to be aggressive in pursuing their interests around the world and they don't have the same restrictions that we do. and they understand that some of our weaknesses are also our strength. we have a great, wide open free market oriented economy and it's a strength for us and they see that as a weakness for us, as well. which is why i argue zte, they would come in and make, you know, make these offers on trying to get in to any network at any time. they -- if you look at the activities, still up to it, by the way. they've repurposed some companies trying to go into small municipalities and offer services saying we'll do it for free an you remember there was a sports team recently that was going to get free wi-fi by wawei. they'd do everything. for free. right? if you look at the numbers, pretty expensive operation.

you start coming to the conclusion pretty soon this is not a for-profit enterprise. how do you do that? a, i think congress needs to step up and push back a little bit on this. the information is pretty clear. the tact that they made it on the entities list, there's lots of reasons for that and my argument is for the investigators that went through that process, they ought to be up at congress laying out the facts so that you can't let the administration get away with saying, well, you know, it was bad but maybe not so bad. no. it's bad. if you allow them to control the pipes of information in the united states they win, we lose. end of story. all right? that data is that important. and so, i think we have to be aggressive about pushing back. it doesn't mean you're calling for a trade war. doesn't mean you don't like engagement in china. you have to be careful of people saying this is just about -- you want to set up balls and be an isolationalist. absolutely not. i want to teach china to be good

business partners today so when they're an export nation we have levera leverage. when they are a consumer nation, we won't have leverage. we do that by i think very aggressive steps on catching them when their chinese intelligence services are doing bad things like they were. and we aggressively push back from a congressional perspective on an administration saying, oh, but there might be some financial implications. feel that pain now or we're definitely feel that pain later. i think we can get through this. it's -- it's a serious problem but we'll get through it. and, you know, transparency is a great thing. you know? just show the world who they are and what they're doing and why it's free. normally something that's free or darn near close to free, there's a reason. and so when wawei and zte show up with a great offer, just remember who controls that information. hey, thanks for having me. i appreciate it.

>> we're not done yet, folks, but you get to eat and so food and drink are provided in the anteroom and then convene at 2:00 to hear the knew on the national security adviser on how the president uses intelligence. see you after lunch.

>> so a break for lunch now here at the heritage foundation and a look at intelligence and national security. wrapping up with former intelligence committee chair mike rogers. the forum will reconvene about 2:00 p.m. eastern. they'll start a conversation on how the president uses intelligence and secret information in his administration. that will be live this afternoon here on c-span3, again, starting at 2:00 p.m. eastern. should also let you know all this week on c-span3 prime time american history tv. tonight's focus, president lincoln. covered a day symposium on the life, career and legacy of the 16th president and that's 8:00 eastern here on c-span3. now here's a look at when's happening tonight on c-span. >> this week on c-span, focusing programs on the increase of drug abuse in america and the situation of the current supreme court vacancy. today, 7:00 p.m. eastern, with the abuse of prescription drugs and heroin on the rise, we look at the government's handling of

the issue. from health experts, former addicts and the u.s. senate. including comments from president obama and presidential candidate ted cruz. >> it's certainly not going to be washington, d.c. that steps in and solves these problems. it's going to be friends and family, churches, charities, loved ones, treatment centers. people working to help those who are struggling to overcome their addiction. drug addiction is a disease. >> so i made this a priority for my administration and we are not new to this. in 2010 we released our first national drug control strategy. we followed that up in 2011 with a prescription drug abuse prevention plan. we're implementing the plans, partnering with communities to prevent drug use, reduce overdose deaths, help people get

treatment. >> thursday at 6:00, with an apparent impasse between democrats, the white house and republicans over the next supreme court justice, we look at what today's leaders have said in the past concerning the nominating and confirmation process of individuals to the supreme court. >> in my view, confirmation hearings, no matter how long, how fruitful, how thorough can alone provide a sufficient basis for determining if a nominee merits a seat on our supreme court. >> a thoughtful senator should realize that any benefits of borrowing an ideological opponent from the court are not likely to outweigh the damage done to the comfort's institutional standing. freedman goes on. ideological opposition to a nominee from one end of the political spectrum is likely to help generate similar opposition to later nominations from the

opposite end. >> those are some of the programs featured this week on c-span. tonight on c-span, the supreme court cases that shaped our history come to life with the c-span series "landmark cases: historic supreme court decisions." our series exploring real life stories and constitutional dramas behind some of the most significant decisions in american history. >> john marshal in marbury versus madison said this is different. the constitution is a political document. it sets up the political structures. but it's also a law and if it's a law, we have the courts to tell what it means and that's binding on the other branches. >> what sets dred scott apart is the fact that it is the ultimate anti-precedent shl case. >> who should make the decisions about those debates? and lochner versus new york the supreme court said it should make the decisions about those debates.

>> tonight, the case that limited the privileges and immunities of citizenship guaranteed by the 14th amendment to only those rights spelled out in the constitution. the slaughterhouse cases. the washington institute held a discussion on why foreign fighters are a major challenge for intelligence officials here in the u.s. and abroad. the discussion comes as brussels investigates the terror attacks that killed more than 30 people including 2 americans this month. this is about 90 minutes. we'll show as much as we can until the heritage foundation resumes their program on national intelligence and security. >> i apologize to the crowd for starting a little late but we're going to be live on c-span and

so we're starting for that. in case it's not obvious since we are live on c-span, this event is entirely on the record. so, my name is patrick clawson and i'm the director of research here at the washington institute for near east policy. let me stand up so you can see me better. and i would like to thank you for coming this morning and it's -- sorry that we have to spend our good friday this way but the terrorist situation in europe is high on all of our minds this morning and we thought we would assemble a panel of people who bring unparalleled experience and knowledge about this matter. so we'll be starting this morning with the institute's own matt levitt. he is our former wexler fellow

and director of stein program on counter terrorism and intelligence. he was in brussels last week where he was meeting with belgian government intelligenc services, and the local police in that famous neighborhood of molenbeek. he is treasury department official. and he is also served in the state department and the fbi. he will be followed by a member of the french foreign ministry who is a diplomat and resident here at the washington institute. we want to emphasize he's speaking this morning in his private capacity as a visiting fellow at the washington institute. he is not speaking for the french foreign ministry or the french government. he joined the institute last summer after serving for three years as a counselor at the french embassy in tehran.

where he focused on iran's nuclear and regional policies. then our third speaker, eric rosand, the state department's loss is our gain. he recently left the state department, where he had served as counselor to the undersecretary for civilian security, democracy and human rights, and previously he was a senior official in the state department's bureau of counterterrorism, where he spear-headed efforts to develop and launch the global counterterrorism forum among other institutions. and eric has now joined the prevention project, which is organizing against violent extremism. so with that, let me turn the microphone over to matt.

>> good morning, everybody. thanks for turning out so early on a friday morning. i wish it was for a more better topic, but here we are. last week i as it happens, spent the week in belgium, meeting with belgian intelligence and counterterrorism officials. as it happens, i was sitting with one of the chief belgian counterterrorism officials on tuesday, as they were about to raid a safehouse in the neighborhood of forest. one person was killed in that raid. they did not find their primary targets saleh abdeslam but found his fingerprints and three days after i left they found him in the neighborhood in which he grew up, molenbeek, a corner around the family home. let me paint a picture for you. after meeting with the mayor and the police chiefs and the counter radicalization cell and the civilian prevention

officials in molenbeek municipal city hall, i went with several of them for a walk around the neighborhood, not a denied space by any measure. it's a beautiful part of town. it's not like some of the neighborhoods in the suburbs of paris. it's a 15-minute walk from the eu city center, three or four metro stops away, including the one that was just targeted, and as we circled around back to the municipal building, we got to a picturesque typical european cobblestone courtyard. on one side of that courtyard is the municipal building and on the other side of the courtyard, catty-cornered to it, with nothing but air between them is the abdeslam family home, window to window, there is nothing but air between the municipality and the home of the man, the family who was of the man who was most wanted in europe, but there's a world of difference between them.

so i think there are three critical points that i took away from my time there, and now looking back on it, after the brussels bombings on tuesday, that i want to share with you. the first is that authorities were absolutely aware of the threat, and they were doing all that they could. the problem is that europe in general, and the belgians in particular, have come late to this problem set, and this problem set is two-fold. one is a traditional counterterrorism problem set, and the other in some ways much more complicated is one of social integration, social cohesion, integrating immigrant communities into society. when you have children in a neighborhood like molenbeek, who drop out of school at 11 or 12 and are, you know, heads of gangs by the time they're 18 and not particularly religious at all but adhere toe an ideology that fills up many of the things

they're missing in terms of family ties, mostly from broken homes, in terms of empowerment and belonging and having a purpose, mind you, most of them aren't becoming particularly religious but this is filling in gaps for them that have a lot less to do with traditional counterterrorism. elsewhere in europe we certainly still see cases where radical islam is the first piece of the component, but not here. from the counterterrorism perspective, there is a long way to go. i'll give you just a few examples. some of the most obvious are the fact that saleh abdeslam was able to hide since the november attacks in paris until this past friday, without being captured. all right? many of the european union member states are not yet electronically connected to the databases that europol has put as a credit to its crossings.

5,000 fighters have gone to fight in syria and iraq, some of them won't come back, some of them will die there, some of them have already come back. that 5,000 number though is not just from a portion of eu member states. in fact much of it is not. according to the eu counterterrorism coordinator who i met with last week, according to his latest report, the reporting from eu member states adds up to only a little over 2,700 verified foreign fighters even though we know and europol reported at least 5,000. more disturbing still is of the european member state reporting that has come in, over 90% of it is from only five members. there is critical need to fully integrate intelligence information sharing, getting information where it needs to be. there's a long way to go there. at least as important is going to be dealing with the social integration piece in places like molenbeek.

as one official put it to me you're dealing with people going from zero to hero. people for whom this islamic state ideology, the idea of getting in at the ground level and hoping this create a caliphate, following in the footsteps of the prophet muhammad and his original followers is extremely empowering. almost every single one of the people who carried out the recent set of attacks over the last 15 months has been someone that was on police radar for their criminal activity. without any knowledge whatsoever that they had been terrorists, and that's not the police's fault and the reason i say that is because in almost every case, the speed of radicalization has been at hyper speed, very, very quickly, people being drawn into their radical ideology. you can't live in part of this

european community. you're part of the muslim nation and you need to do things on behalf of the islamic state. very, very fast. it's important to recognize finally that, while the brussels attack was a wake-up for much of the world, it really wasn't the ah-ha moment for europe. nor, for that matter, were at tacks in paris in november. it might have been for the public, but not for counterterrorism officials, not for intelligence officials. that ah-ha moment came 15 months earlier in january, 2015. not with the "charlie hebdo" attacks which i would consider both the kouachi brothers, acclaimed by aqap and kulibali self-identifying with the terrorist frenemies whose groups were fighting one tooth and nail in syria and iraq and engaging in attacks together in paris, those were still of the old school lone offender type.

there was no evidence they were being foreign directed by other group. the key ah-ha moment came a week later in belgium where intelligence led people to a safehouse based on intercepted communications, a key belgian islamic state terrorist based in a safehouse in athens was on his cell phone. they raided this place, two belgian officers were killed, and what they found there was tremendously disturbing. precursor chemicals to make tatp explosives of the type used in belgium this week. large cache of weapons and ammunition, sophisticated communications gear, a significant amount of cash, and indicating to them as they continued to investigate, perhaps most disturbingly, not only that this was a foreign directed plot, and then over the course of 2015 we had several more foreign directed plots including of course november in paris, but also the

cross-jurisdictional nature of this plot. they're in belgium, they're being overseen by someone on a cell phone in greece. other pieces of the investigation were going on in germany, in france, and in the netherlands. u.s. intelligence report that has since been made public presently noted at the time that this, the cross-jurisdictional nature of these plots is what is going to make the most difficult for the international community in general, and for europe in particular, given the fact that its communications and intelligence and information sharing are still very much a work in progress, this is what will make stopping the next attack all that much more difficult. we have two clear baskets of tasks ahead of us. the one is obviously counterterrorism, and it's what most people are going to be focused on right now. identify the accomplices, map out the network, arrest as many people as possible who are planning attacks against the west today, and you have heard yesterday and i'm sure there