tv Privacy and Civil Liberties-- Hearing CSPAN November 10, 2013 2:35am-3:51am EST
all staff go to the exchanges. senator reid is offering an , and they continue to talk. humberto sanchez writes for roll call. we thank you for your time today. >> thank you so much. >> c-span, putting you in the room at congressional hearings, white house of, briefings, all as a public withce of rabbit industry c-span, created by the cable industry 43 years ago. ou can watch us in hd. >> the privacy and oversight board met on monday. they talked about the amount of
oversight in the process. next, a portion of that meeting with one of the former judges. we will hear from officials who previously served at the justice department. this is a little over an hour and 10 minutes. >> we are pleased to have james baker, who was formerly with the , judgeent of justice .arr from the district of ohio mark sillinger, a former doj attorney at the computer crime and electrical property section. these make your remarks and then afterwards we will have five minutes for each of the board
members. >> thank you very much. i would like to thank the board for inviting me back. it is an honor to be here and an honor to be able to discuss these kinds of issues in this type of setting. i appreciate the opportunity. i have just a couple of quick comments. the focus of our discussion is on 702 of the fisa amendment act and 215 of the patriot act. while these are very important statutorily authorized and judicial he reviewed surveillance programs involving the collections and communications -- collection of commit occasions and to medications data with many americans, they are only part of the story. that was discussed this morning in the panel that i was able to attend. in particular, as the panel is aware, the government conducts service activity using a number of different authorities. especially including outside the united states under executive order -- as you are evaluating these
issues, i asked the board you think more broadly about them. the privacy issues you are confronting do pop up in a number of different contexts. as another example, even with respect to telephone records, telephone calling records, there are several ways, eight to 10 by my count, that the government can go about obtaining the same types of records that you are talking about when you are talking about 215. 215 is incredibly important when talking about these types of records but it is only part of the story. i would urge you to think broadly. as i mentioned the last time i was here, i would also urge you to think probably because the topic that has not been discussed very much is cyber and the need to think about the critical privacy issues and the data collection issues read they pertain only to counter terrorism and foreign intelligence but to cyber. i am happy to talk about that at length if you are interested.
the other point i would make is, with the foreign intelligence surveillance court, i was with you department of justice and i can elaborate at length, if you want to be. in many ways i would say, notwithstanding much of what has been written in the press, the fisa court is a national treasure. it has done its job. i think that has not been said enough, so i wanted to say that at this point. however, the fisa court is not some type of super inspector general over the whole apparatus that we have to collect intelligence. that is a multibillion-dollar enterprise conducted by thousands of people. that is not what the court does. i think, with respect to 702 and 215, i think we have reached the outer limits of what you can reasonably expect a court to do in this setting. i'm happy to discuss that at length.
at the end of today, in my mind, it is the responsibility of the president, the executive branch, and congress to conduct management oversight and control of these types of activities. i am happy to talk about transparency and the issue of whether we are going to have an advocate or something like that in the question speed thank you very much. >> thank you very much for coming back with us again. judge carr? >> just like baker, with whom i worked for five or six years -- i cannot for member if you left before i did or not. i am pleased to be here and part of the conversation. as you may be aware, as a result of the op-ed i happened to publish on the 23rd of january, making what i consider to be of modest proposal, which i will repeat this afternoon to improve the process and certain applications before the court
and, i hope, would enhance public confidence in some of the decisions the court reaches. that proposal is quite simply that congress give the fisa court judges either the discretion or perhaps direct them to obtain the services of outside independent counsel when the court is presented with something that is new and knowledgeable. this would happen on very rare occasions. i want to emphasize how frequently this kind of for visitation would be necessary. the vast majority of fisa applications are simply fact- based. there is a very low probable cause standard. working on behalf of a foreign government or terrorist base organization -- that is the probable cause showing. once it is made we have to issue the order, don't have the discretion to second-guess the government's purposes or reasons. it acts very much like a search
warrant or title iii order. on in frequent occasions that on infrequent occasions -- jim baker -- on infrequent indications -- john baker would be the one who did it. this is a new technique, if something new or unusual about this takes it outside of the ordinary -- really quite straightforward and typical, routine fisa application. the government would do that, they would do it for good reasons because they knew we had entrusted integrity to function in -- to function effectively and have the confidence to know what they are saying to us. that requirement became codified in the first draft of 2008 with the foreign intelligence surveillance court whirls. -- surveillance court rules. it seems to me to be a good trigger point for a judge to exercise his or her discretion or perhaps for congress to
mandate when that notice is given, but then the court calls upon what i would envision to be a very small codger i of three cleared attorneys, probably in the washington area, probably with some sort of experience in this area. they wouldn't have to spend a lot of time learning how the wheel turns, as it were. an individual came in to our present. -- to represent. it was to represent the fourth amendment of the constitution and communications privacy. it would be an very infrequent occasion when this would be necessary. i want to underscore that. i think the benefits of the court -- the benefits to the
courts in the process would be substantial. we are accustomed to how we work in the adversary process. what you say? how it -- that is how we make decisions. when the government "wins," with a judge says you can do this or that, it has no interest and appeal. it is not going to go to the fisa court of review and say, we won but nonetheless look at it. in that circumstance, whether there is a new word novel technique or some other aspect where the court has called upon an individual, and that individual will be able to appeal. the pellet review is an ordinary the pellet review is very important. there are times when i do get reversed and say, i was wrong. think goodness they are there. this has occurred to me since i first wrote that op-ed piece.
it seems to me this outside counsel, i haven't really gotten a name for it yet, can also perform an important role when there is a troublesome issue of noncompliance. once again, the government is required to report instances noncompliance. it did so every time i was there. the former presiding judge lengthen the opinion. it was some is it just that -- some who suggested that maybe there were reports of noncompliance. it might be useful to have the discretion to reach out to somebody to assist the court. -- assist the court in understanding the issues and
assuring that what went wrong has been fixed and does not have any serious cause to it, or if it does. see that that gets fixed. at some point i hope to be able to talk about the role of legal advisers. their work for the court is absolutely crucial. i don't think it is well understood by anyone outside the court. the role that they play is extremely important and i hope we will have a few minutes to talk about them and their role and where it fits and everything. one final thing. it is my view that we should all keep in mind, when talking about foreign intelligence collection, it is a very limited activity under the foreign intelligence surveillance act that if you
look at article to -- the article in constitution that establishes the orifice -- the office of the president. you don't find the word "judge" in there at all. this is a very unique circumstance where the third branch actually plays a role in overseeing the activities of the executive. in an area where the executive constitution has exclusive responsibility, the conduct of foreign affairs and the dangers. thank you. >> thank you for inviting me as well. especially thank you for seeing me on the same side as judge carr. this may have been -- this may be the same -- may be the first time i have sat on the same side as a fisa court judge. i have helped dozens of clients
respond to government demands for data to mobile in criminal cases and under pfizer. although my representation of yahoo! before the fisa court is why i'm here today, my comments are my own. my client work has given me a unique view into the position of providers, service providers, who have received demands under fisa and helped me see two aspects of the process, which i believe are inconsistent with our legal system. first the overall broad cloak of secrecy. together these issues posted cookies by providers and by extension. when providers are served with classified fisa orders or directives. -- or directives, they are facing a very unfamiliar process. based on that a mere glimpse
they are being asked or compelled to disclose all private communications they carry. due to the secrecy providers sump -- few places turn to for advice. provide us with limited resources struggle to even understand, much less react accordingly to the profits they get. providers are the only parties with a statutory authority and the opportunity to challenge these orders before their air executed -- before they are executed it is designed to make them the last barrier between government potential overreaching. the government has not been given the authority to do a full review of this section directive unless it initiates a challenge. a decision by a provider to challenge must be made alone, under a cute time pressure, with sensitivity to what is at stake. when providers do great a challenge. even know that even though the rules have really been tested,
the legends of handling classified litigation are very difficult. documents and the court is like trying to get a letter to santa claus. the rulings come down the same way. the government regularly submits export tape papers that their providers are not permitted to read, even if it is presented by a lawyer with the right clearance. this happened recently. my second case in the fisa court was an action brought by five providers, seeking the right to disclose the number of intelligence processes they have received, just the numbers for each former process. and to oppose this release, the government has made a secret filing to justify why this
disclosure has caused harm? they refuse to let even clear cancel see that filing. as you can imagine it is hard to respond effectively to something you cannot read. even the adversarial proceedings, the court is hearing only one side of the issue. i think we are lying on providers who have the toilet in secrecy and fight the court with one hand. this is why we have a special advocate, one that would have the same access to classified materials, who can make a difference. judge robertson pointed out in the last hearing that judges are used to making decisions after hearing both sides of an argument. that is the way our system is
structured and that is what makes the decisions informed and legitimate. an advocate can help insure that the other side of the argument is not just in the extremely novel cases, but and pulled collection cases but other cases as well. the other side is presented that the advocate can weigh in on the knowledge is court. we need look no further than the odd lockwood and declassified decisions to see what happens when the court and the government worked through these issues without any balancing input. even if the decisions would not have come out any differently, even if the court heard from an advocate, adding an opposing voice would give the process more legitimacy and restore some faith in the -- >> pinky. we will start the questioning and -- the questioning. >> i surmise on the morning panel that the government, as well as many outsiders, are reasonably comfortable with the idea of the court being able to call for amicus to help them with particular novel issues. i also think that judge carr and many other people are suggesting something that is a little bit more energetic than that, namely that you would have a body of outside counsel.
i would like to pin down a couple of things, initially with judge carr. certainly with other people's reaction to that too. if you have such a body of advocates with secure clearances on the outside, do you think it should be entirely in the discretion of the fisa judge who decides when he or she wants that kind of help? and more specifically, i think because judge carr raised the problem of appeal and i think most of us who have experienced whose experience is familiar with regular article three, the appeal is a very necessary part of the process. there have been constitutional questions raised by other people about whether or not, apart from the provider, if you try to give an amicus or appointed -- somebody appointed from a panel of secured lawyers the right to appeal, you might run into constitutional objections. i think those two basic questions about whether or not you would lead the initiation of the appointment of such person is entirely in the hands of this judge and whether or not that person was in and had participated in the lower court proceedings, should that person, that advocate be given some right of appeal? >> let me say,
to try to analogize, i do not think that an office -- an outside office reviews every single application as necessary. my thought is have a relatively small number of attorneys, something like a cj panel in ordinary, no cases, who will gain experience in time because of their small number, who are completely wall-to-wall security cleared.
by all means, i think that individual should have as complete access to everything the court is hearing as the justice department, the prosecutor has. i actually haven't thought about the constitutionality of being able to appeal. that would give the opportunity of further review by a judge panel of foreign intelligence and surveillance court review. ultimately perhaps to secure a supreme court review. i cannot answer your question
about that. i'm not sure that i should as a judge. in any event, i do not know. i have been thinking about this further, i think under some circumstances it should be necessary for the judge. when rule 11 otis is given and i do not know whether it would cover -- i think it would cover something like the prison program. also give the judge the option, a sort of to hand her so that -- two-hander.
the judge can retain discretion to reach out. it will be a small group of lawyers, precleared, gain experience, and i think used relatively infrequently. or perhaps, this just occurred to me. -- occurred to me, when the provider wants to appeal taps the provider can also request that the court appoint an outside attorney. >> if i can just jump in on that for a moment, i would inevitably be one of those attorneys. i'm the only private attorney to be before the court of review. i don't think that it is enough to talk about the constitutional questions of letting somebody have the standing to appeal. the court doesn't believe it has
the power to enforce the executives to make classification differences differently. the executive is not prone to provide this private counsel with full access to private material that would be necessary, and certainly on not on a historical basis. an advocate would know that two years ago the solicitor general stood up and made a resuscitation to the court that, for example, there is no database of insulin until he -- of incidentally collected u.s. commit occasions. the representations the government making in one case may not be consistent with the representations made in another. as much as it is in my business interests, i would love for there to be a small group with exclusive rights practices before the court. i don't think it would satisfy the interests of protecting the constitution.
by definition that group is going to be limited. i would love for a special advocate to be able to bring the help of outside counsel and the type of panel you described on a particular case. but i think there has to be someone with an institutional is stressed that institutional interest to look across multiple cases. >> thank you, mr. dempsey. >> do you have any comments on what we have been talking about here. >> we are trying to balance speed and agility and the ability of the government to move quickly without adding more processes. there are a lot of processes already. we are going to add more under all of these proposals. another issue is intruding on the president's article to authority. -- article 2 authority. this is what this act was all about.
there may be reasons to have it now. i am worried about delegating to others, whoever it may be, the authority to disclose information that classified information to yet another party. i also worry about having an outside panel. the concept of an advocates versus an amicus on a case-by- case basis -- we can talk about that later. the main thing i'm worried about is leaks of insmed -- leaks of information. it is hard to prosecute a leaks case. long and hard about whether this issue is something i am going to try to leak something about. if you leak and they still cannot prove a case -- i am worried about this in a variety of different levels. >> something just occurred to me. it seems to me that perhaps you could create these people as some sort of -- it is the small group that is federal employee, appointed by the federal public
defender. there has never been a pfizer leak by anybody who's been related a pfizer. pfizer -- to fisa. difficult tobe prosecute but it may not be hard to take away his license. that assumption to keep in mind. idea of federal appointment. the more i think about the risk of losing a license and the potential risk of being prosecuted, i think at some point you have to have confidence in the people who pass these kinds of security clearances, that they will do the job and meeting classification. a response to judge -- can
congress mandate the concerns about withholding classified information for this outside counsel? that andess include say that person shall have the and access to all documents information, classified or not, that the government funds? >> i do not know. that is another constitutional issue. >> i am not an expert but by and setting indures act aikman ok's, the government cannot be forced to disclose information to a defendant. the government can be forced to make a hard decision about whether to prosecute the person. this section may suffer from not closing the information to the defendant. i think it is a significant >> would thel --
analogy in the situation be basically the court, in essence, say if you want to prosecute this person you need to make this information available in this way. if you want to get your order you need to make this -- i am not going to rule on this until i am sure that i have a book tied to the story. family have to figure that out. >> the judges nodding his head. >> it would make sense. you want this order. we are going to play with a level playing field and all of the cards up on the table. that may be a way around it. >> one quick question. there are two related ideas at play. some people talk about the special advocate, some people talk about amicus. is it possible that you could have a hybrid of this that sometimes you would have the lawyers, the handful
-- in at precleared least one case the fisa court review has invited not clear ash clear a meek -- invited non-clear amicus. is there any possibility that instance of the first impression when the application is first presented it, that the court could say all the details are secret and there -- did it have to do with the wall? you could have a hybrid of both of these. do you feel that yes or no? >> i'm trying to think -- for
instance, the prison program itself rate some fourth amendment issues. the "reasonable close quote is the cause -- the clause -- "reasonable" is the clause of the fourth amendment. i am not sure you can so easily thengle the secret from "pure question of law." >> i have the same view. an actual example in the 2008 case, the question was whether the lawfulness of the constitutionality of the directive -- the court relied heavily on the target of procedures where the procedures were in place to provide sufficient constitutional protection. had it not been for the leaks, it is not clear we would have ever seen them. to argue, even if you are in the case -- or without seeing some
of the actual basis -- it makes it difficult to present a constitutional argument. >> thank you. many of the circumstances i have in mind raise new and novel methods of collection. itself --prison idea there is an intersection between the technology running ahead of the law before leaving else -- i'm not sure it can be quite so finely sliced. >> leon something you talked technologicale advances, what is your understanding of the current ability to use technical experts, technical consultants? is that something that the feds -- i think we have heard competing views as to whether or not they can already do that. does it do it?
should we do it more? i'm sitting here tried to think of new technologies or to avoid what we have heard to be a fromem of miscommunication technologists through two lawyers through to judges. of whether question there is already that capacity. hubert your finger on a very important question, this game of telephone. the real problem is a significant problem. if the court was had a question, we can bring in any expert from the government to talk about any technological issue that was required. just thinking about it, it seems to me that if the court wanted to bring in an expert from the outside, perhaps from one of the company's market is talking about, i do not see any reason
that cannot be made to happen. i don't see that as being something that would not be possible to do. you would have to bring in someone who has a clearance, figure out what kind of questions you're going to expose this person to, what kind of information. there would be some security questions around that. i don't see that as something that should not be possible. >> does anybody else want to opine on that? -- back inknow this 2002, part of my experience as a rookie fisa court judge was to visit agencies. -- visit agencies and be shown and told about what is the flip so that the flip phone -- what is the flip phone of technology. we had one opportunity and we took it to be informed of our
particular type of activity. i cannot go into any detail. i'm quite comfortable that this can be reached within the government. i do not know why we cannot reach outside the government -- so we can understand what everyone is talking about. >> you were talking about shiva .s a possible analogy the government at the end of the day has the ability not to bring criminal charges. there may be other alternatives for the government to pursue, such as immigration consequences, png's, in vision and variety of things the government can do. you are talking about a situation where you have identified who you believe to be the wrongdoer. does the analogy hold if you are talking about the fisa court where you have a hybrid preventative mission of many of these authorities as well as an investigative?
is strikes me it may not be the truest analogy into the situation. >> ia i just brought up -- am worried about, first of all, the president being forced to disclose classified information. i think that is a big issue. i think that raises real concerns. to give up president the ability to obtain some type of -- some type of otherwise lawfully authorized statutorily improved collection that is consistent with the fourth amendment, obviously he has to persuade the judges about that. it is a real heart issue. it --aven't start about haven't thought about it until seven or eight minutes ago. it seems to me that as a judge we would, part of the ordinary process would be to say that we have questions. i call one of the oap our attorneys saying i have a problem with this.
that would be a fact that a problem, it would not be a technological kind of problem. what it does seem to me that i have the ultimate authority. what ive to give me think i am asking them to give me if they want my approval. also, if i turn them down, they cannot show up to the next person next week. they have to come back to the same judge that has turned them down or appeal. i think it is something that is worth looking into by people who thought about it. i will think about the idea myself. if you have this independent counsel, rather than special advocate because that has a different connotation -- or amicus has a different connotation -- if i say i want that person to have all of the information you have, mr. baker,
then he has a choice. he can say, judge, we are going to appeal. that may be the way to go. is the way we do things, as judge wald knows. should --ng judge judge carr's comments raised for -- judge carr said there was not much of an adversarial role for the court. from the court, he had the right to contact anyone in the government and ask for information. as someone who has been in an adversarial role, i find the contacts between the government very difficult to deal with and overcome. the fact that the same judge who may have been involved may be deciding whether there is an
adversarial challenge. it is not a different pool of judges. it is not a district court judge decided there should automatically be suppression. we are going with the same pool of judges who have both an approval and adjective notorious -- an adulatory role. >> on the other hand, when the prison application first came in , the subsequent application did not go before the same judge. the independent authority to decide whether or not it could be approved. there is a different sort of process. it does not return to the same judge. on rotation is 90 day expirations. once in a while i would get something that had a year or two, but it was very rare that i got the sequential. i don't think it would be necessary in that situation.
i think it would not be. >> more than the judges are playing two different rules, they're working with the government, the executive branch, to improve a surveillance and come back. their work into the process of approval but they are also the same judge, the same court that listens to an adversarial pursuit whenever a provider wants to bring a challenge or we create some sort of additional advocate or amicus to bring a challenge. we have to talk about the court's dual role and how to sort that out. >> i use that term because i do not see the difference between what i did as a judge and what i did as a magistrate or as a district judge later issuing title threes. approve andrd processes the same.
the laws quite clear that i can order the judge for suppression motion. i don't see much distinction -- in fact, i don't think there is any. as a fixed job and as a article three job -- article three judge -- >> ms. brown he e m a -- ms. brown? switch gears from the adversarial process to transparency. it is the subject of some of the other recommendations. these questions are more directed to jim and judge carr. how feasible is it for judges to with an eyens toward declassification or reduction later? just assuming we're talking about prospectively as opposed to retrospectively. is this an easy matter, is a complicated, can it be done?
it was mike syrians, i do not know about the other judges with whom i served or judges today -- writing an opinion, as we normally understand it, was a very unusual event. with an ordinary search warrant you do not write an opinion you look at it, if there is probable cause you issue it as a title iii order. and pfizer order you issue it. >> in the unusual circumstances -- >> what's again, -- once again, when a judge felt the need to write an opinion -- and that is often triggered by a notice from the government, if they notice something is going on that is unusual, and by the work of the legal advisers. they will work on the issues. ofon't remember the number opinions.
maybe several pages i wrote, but it was a handful. part of it is thinking about transparency. courtnot like an ordinary were day in and day out you are writing your opinions. -- whatry to figure out you do not want to have is a reduction in this nonsensical because of the reduction speed how easy is it to write something that could be -- of the reductions. how easy is it to write something that could be -- written byarly was the judges to publish it. they boiled down the classified stuff. the legal analysis and historical background and so on and so forth, they were able to put forward in a way that made sense. it wasn't like a piece of swiss cheese. you can understand the logic.
the classified stuff was concise. case clearly -- amicus participation was feasible. there was something about that case that lent itself to public participation and publication thereafter. how translatable is that? if you were to have some act of congress that said, to this -- to the extent practical opinions of the fisa court shall -- if they were forced to do it, basically. i think they could do it in many instances. there will be some instances where it will be more challenging. some of the technical ones where the fact of the case is interwoven with legal analysis. in the fiscal review decision it really was a legal issue. it really wasn't a factual one.
factual or even technical kind of issue -- actual or even technical kind of issue. the court had that it had to do that. another option would another option might be if the court were to release an the keynotescase, or something. >> let me ask you about that, because we heard from another that he would rather not see summaries because that is not always a full picture. do you have a view about that? will there be a -- an unclassified summary versus a redacted summary? do you have an opinion about that? >> it all depends. ?hat is the issue
doesn't really involve something -- and doessified it really involve something that is classified? can you recast it in a way? there is the likelihood at some point of publication of part or all of the decision, then certainly a judge could go into writing whatever he or she wrote and with that in mind, deliberately, apartment alive's and right -- compartmentalized and write about that. it might depend on the particular issue. it might be easy. it might be impossible. i like the idea of a summary. further details this is what is happening.
i cannot really answer your question directly. i'm sorry. >> it seems to me you are trying to find balance between unnecessarily disclosing classified information that would harm us and providing adequate transparency for people to understand what is going on and have confidence in the system. it is a balance. on the one hand you don't want to have no transparency, and you don't want to have tv cameras in the courtroom either. is for at make sense couple of different options for the court to pursue or have available to give transparency to figure out what is the best fit in this particular -- each particular case. role of thehe person, whether an advocate or staff attorney or whatever when they appear before the court. and secondly, -- two questions. first, is there something that
takes charge of everything the government proposes? and how do they evaluate which arguments to make? there are statutory argument, constitutional arguments -- how do they make those decisions and who guides them in their strategic decisions that they make? we will start with mark and go on down. think they should oppose everything the government seeks. the goal is this not -- the goal is not to make it harder for the government to protect the country. the goal is to make it simple for the government to protect the country while supporting the constitution and to have someone on the other side pointing out the constitutional balance versus the need for security or surveillance. as for how to decide what cases to get involved with and what arguments to bring, i think the first person to occupy the office should play a large role
in figuring that out. it would occur to me that novelty is one thing. as far as focusing on when they should get involved, it is get about how they should involved. lawyers strategize. it is probably based on who their client is. how does each particular person make those decisions? >> to try to get at that in a short answer, i would think you have got it right as to who their client is. they view it either as the american public, or in some places, the human race that has some sort of human dignity and privacy in their communication. ther client is to offer perspective of those individuals who cannot be there tuesday for themselves as to whether the surveillance is -- who cannot be there to speak for themselves as to whether the surveillance is
merited. it is hard to choose between them, but i would think they would be empowered to make both of those argument, statutory and noncompliant and constitutional. >> certainly, they would have the ability to make whatever argument they thought was appropriate, just like a lawyer in any other instance whether it is in trial court or appellate court. i would think the lawyer would do -- would be able to make whatever argument he or she thought was possible and credible, and perhaps successful. in a unique situation, calling to the government's attention that -- to the court's attention of the government isn't, if that lawyer thinks it is worthwhile. me -- and in the system i'm trying to propose, it could enable this -- lawyers often when confronted with new or difficult issues talk to other lawyers and get their import -- their input.
what do you think? that is a natural source for where a lawyer would go. thes getting more elaborate further we talk, but on the other hand within the confines of what i'm suggesting, i think thisould also enable that small group, just like a small federal a look defenders office, they talk amongst themselves. they are privileged. nobody can make them disclose it. and you bounce ideas off each other. when these issues come up in front of the fisk, no one has been there before. you do not have precedent. and you have to think things through in a seminar kind of way. that is one way that lawyers would -- i'm sure mark does that with his client and others in his office. what do you think? that could be held. i don't think we have a template as to how that would occur, but again, that lawyer would have as much opportunity to raise whatever arguments the lawyer
thought were appropriate as to government and classified information. and now when i think about it, at least within that small group talking amongst themselves and jointly coming up with how they go about representing. think that lawyer will be called upon to dream up arguments just to dream up arguments in opposition. but he will say, we have no opposition to the government's request, end of discussion. there are lots of issues associated with this type of function, office, whatever you are going to call it. it seems to me the one thing you would want to do is to make it clear to the people that this office is independent and can decide whatever legal position it wants to take in any particular matter. constitutional issues, statutory
, he would haver to leave it up to the people in an office or whoever it is going to be to decide which approach they will take. it has to be independent. >> we have time for another brief round. i've just got one question. i'm returning to the appeal question. i recognize that some of you have not really had the chance to research, or don't wish to comment, but i want to raise this question. we have been talking about the fact that the five the court is kind of a unique animal. fisa court is kind of a unique animal. it has been thought of as an article three court, but it has been pointed out that it has some sort of auxiliary function with approval. here is an argument i share with
judge carr. this court inevitably must, and has, print out constitutional questions, questions of whichory interpretation, have to become part of our, to the extent that they are a disclose, part of our jurisprudence. that i think me is it is so important that not only do some of the fisk council have the opined on the constitutional service, but they are applying typical traditional article in a situation where the court is siding -- the threecosts siding article
is in question. but it is devoid of one of the most important parts of article three courts, namely those who have an interest in the preceding not being able to have any voice. for good reason, and i understand secret see -- the secrecy involved for national security. but i'm trying to pick your brain as to any way to solve that question. because to leave this at the highest form of jurisprudence, namely constitutional questions and sometimes those with statutory construction, at a point when they cannot be unveiled in any other process that jurisprudence has even up to the upper tier, even to the fifth, some have suggested that kind of certification, that has had its opponents, too. do you have any positive
thoughts? >> i will take a shot at it. i hate to keep coming back to the 2008 court of review case, but the government was making the argument that there were not any providers to challenge. in the court ruled that since for them and writes words day, litigating on behalf of the users was not a constitutional standing doctrine. it had put in a provision for providers in section 702. i do not see the hurdle as quite as insurmountable. hase agree that a person fourth amendment rights and they were to litigate that on their behalf, it is a question that congress can wait, not a strict constitutional one. at least, that is my interpretation and my offer of help. >> i'm not sure i fully understand the concept of prudential standing. seems to me there are a
couple of different circumstances. one may be that there is a target, a person named in the order. and that is easy, you can -- or it seems to me that person could be designated to represent the interests of the person affected by this order. i think that is what you are saying. they have bona fide interests. and there is a scrap of document able to bet be commented upon. you have a situation where there is capable of repetition, but it will delay your views unless you , even thoughdecide arguably the particular circumstances now move. also, congress gives courts its jurisdiction. >> congress created the original fisk, and it in a sense, you might say, that -- decided that
this body of people could not become a regular participant if they had terrorist -- pre-k's -- >> and it begs the question, can a court oversee any roles like these? and they all agreed that fisk is a good thing and five is a good thing and we don't want to push it one way or another -- and fisa is a good thing and we don't want to push it one way or another. keep in mind, although would take is the executive saying, no, we are not going to go along with this. reviewhe fisa court of and whatever it says, ultimately, the supreme court might say that the whole structure collapses. who knows? has never been tested and i don't think we want it to be. >> jim baker, you said in your opening remarks -- i hope i'm
not misquoting you, but i think you said something along the lines of, we can go on as far as we can go with the five that fisa court.h the five them would you clarify what you are referring to? >> it was the outer limits of what we could reasonably expect the court to do. we should not think of them as some sort of super inspector general that is conducting free ranging oversight of the activities of the intelligence committee. constitutional issues with that. trained to do not that in that way. they play a different role. i am trying to set expectations. i'm urging you to set expectations in a realistic way with the american people about what you reasonably expect the court to do.
the same with congress. the -- what can the members of congress and their staffs reasonably excited to do with the oversight of these agencies? it is primarily my view that the president of the united states can take effective management and control and oversight of the intelligence community. to theyou go back original point, look at structure 702. you have the court proving these procedures, several different types, different applications, but not really engaging in review of individual determinations and so on. i just think you have gone pretty far in terms of what you can ask it court to do to conduct oversight of the intelligence community. >> i have no other questions in this round. i yield. >> i appreciate the witnesses being here. it has been very helpful. oni do want to take you up
advice you had given us earlier about legal advisers and what role they play. there is definitely a sense, and i mean no offense having been a law clerk, but the fees for junior attorneys having been law clerks, i wonder if you could talk more about who the legal advisers actually are and what role they serve. >> when i started in the court in 2002, there was one legal advisor. when i left, i think there were four or five. i can't remember. clerks noreither law magistrates. it is a unique role they perform. i think i can speak for myself when i say -- and i'm the author of the treaties and surveillance, so i know more than most of the judges going into it, but they know more about the workings of the agencies than any individual judge can. we rely upon them to assist us in making decisions. to give you an example, they get
by fisk role, seven days before we get, and application, and they will read through what is called the read copy. and jim will confirm there is a lot of legal push back between the legal advisers in the court and the oi pr. i know from personal experience there is a lot of pushback and thethe oipr agencies. someone said this morning that they don't want the junk, because if they do, we will lose confidence. it will be much more difficult unless they are straight up with us. -- and legal advisers not infrequently, i would come in and have, let's say, x number of cases sitting on my docket, and that number grew substantially well i was there. case,would be told, this that case, and some other case would be off docket.
it would not be formally presented to me for review because of the interaction between the legal advisers and the oipr attorneys, and the agencies. that was a core part of their rigorously doing the applications. one of the things that i think should be considered would be than -- the instances within which an application should be submitted to a legal advisor, but never submitted to a fisc judge for consideration. should be too, registered and recorded and published. , but jim,rcentage, no would you agree with me that
fairly regularly cases would come off docket yet >> or they would come off and be replaced another week because they were trying to resolve and finish the analysis. >> right, but i don't think it would be difficult to give every read copy a number. and then if it comes off-topic -- off docket and they decide never to presented, then nothing else shows that the rate of rejections in terms of the overall operation of the court is higher than a simple turn down by a judge. but to say that these are law -- they occupyow a unique role. they work for the court, but in a very important way they help to ensure the decisions that we make. very often, they would write a
memorandum for us about some aspect or other. and then we would sit down and read these things. and they are not two-page search warrant applications. they are 40, 50, 100 pages. they are very thorough them every bit as lengthy as a title iii. oipr and say,ll would you give me this or that? on occasion i would have hearings. i would question the agent and the lawyer under oath flow -- under oath. and i would make a finding and determine that my questions had been answered. >> thank you, all three of you, for being here today. part of what we are doing here educatepting to ourselves, part of what we are doing is attempting to educate others who may be thinking about this. so i appreciate the thought and time you have put into your answers. >> and certainly, speaking for
myself, if there are other questions that the agency has, we would be happy to answer them. >> thank you. i want to follow-up on something i had asked the government about and we did not get into a full answer on that panel. jim, i think you are in the audience for the discussion requirementse were that the government submits to the fisk after the fact, the phone number is now a selector in here. the paper trail is the basis on which the selector is established. what would the court do with that? would this be an actual check on the system? would it overwhelm the court? could either of you speak to how that would work?
>> i don't see how it would overwhelm the court. >> it would or would not? >> it would not. you have a spreadsheet. you write down the selector. you write down the date, time, all of this stuff. and it is not too onerous for the government to comply with. i think that is a real issue. and i would imagine if the court were to look for real patterns. if things were to go along that is -- in a way that is consistent with the understanding of what they are thinking their approval is, that i would have to say that is in check. i do think it would be useful for the court to have additional transparency. and it seems like something that would give the american people that what confidence is going on is legitimate and appropriate. >> to do that, first of all, the periodics of the
reports that all judges get through the wiretaps. again, it is all on the record x rte.ake -- ex pa if you are doing a good job, minimization -- if you are not. seems for it to be useful, you would to go back to the particular judge who issued the prison order, whatever the order was. >> 215. >> 215, yes. to go back to that judge that gave the original authority, rather than whatever judge happens to be there that week. .gain, i don't know but i suppose, in time, any judge would have developed the familiarity to be able to have developed reasonable
articulation of suspicion in this context. >> and there was some discussion and back and forth about the courts and the lawyers in the government. can you talk about this back- and-forth that happens within the government? is there a quiet sigh adversarial -- a quiet the adversarial process within the government? can you talk to that? >> it depends on what kind of communication, whether with the fbi or the nsa. with the fbi, you have review in the field office. you would review at the fbi justiceters or, to the department and have a review there. and it would go to fisk and you would have a review there. and thee review meticulousness and the care that people put into these things is substantial. of dialogue back and forth between every level, among every level with this. there is back-and-forth with doj
and fbi. i always took it as a huge amount of my response ability to make sure that i maintain at all times the credibility of the justice department in front of the five the court -- fisa court for muscle it was transparent what was going on. and when we made mistakes, as we did, we brought them to the attention of the court and we tried really hard not to make mistakes. it was really the justice doingment in my opinion his job, executing its responsibilities to order the constitution and the delegates were there to make sure that the properly.ecuted we will do our best to make sure it is enforced in the right way. if they have not met the standards, we will tell you if they have not met the standards yet, and they have to x, y, and
z to do so. i think the system has worked well so far, but it is clear to me now and painful to see that some population of the u.s. is -- does not think that. we've got to figure out how to deal with that. that is your job. >> thanks. just one final question. the point we made earlier that this outside party advocate makes is that i have a role in compliance reviews. what role would that be e and how -- what role would that be? and how would that play out? many times, -- this is really quite straightforward and simple. but in the event that you had something that was more complex and you wanted to be really sure the problem had been identified and addressed and would not that, but again, i think
at least the fisa judge should have the opportunity to have the toependent counsel and participate in an adversarial mode with the government prosecutor and conduct a hearing , like we do with a suppression hearing or whatever, and then make a decision. one would hope that the decision would ultimately be ok, things are not as bad as they look. and things have been fixed. but i do think there would be a for the attorneys to participate in the process from time to time. >> do you have numbers on that? >> it is not a career enhancing move for somebody in an agency to make a mistake, to get it long -- wrong. and one of the things that impress me as a young magistrate
at the -- about the effort bia and -- about the fbi and cia so forth, one thing i can assure you has impressed me from day one with all of my activities with the fisa court is the people who do this work want to get it right. not just the lawyers in the justice department, but the agent out in the field. and the other thing i want to say -- and i have alluded to this before -- i know that at least the fbi on a frequent occasion was not happy with them because they were not going forward to present some that the euro very much want them to. adversarial relationship, but certainly not hand in glove. at least when i was on the court, one did not have the sense that they were presenting anything the agency wanted. >> i would be very careful about using the independence of this office to start getting involved too far in what would possibly
lead to the capture of executive branch activity. we believe there is some role be on this process, some role that most advisors have found to be brilliant and play. and they should not look to play too many roles in this so they can challenge the independence of this. >> i want to thank the panelists . we will take a break and resume at 2:45 p.m. >> may i say one thing that occurred to me this morning, and also before the senate judiciary committee? let's all keep in mind the remarkable country we live in where we are having these kinds of -- conversations. i don't think any other country has anything like it. can you imagine this kind of conversation occurring anywhere else in the world? i think we should all keep that
former member of congress. and a professor at george washington law school. and the principal with key strategies and former federal prosecutor. and eugene stafford, professor of computer science and insurance security at purdue university. the university. we will do another round of five minute questioning after introductory comments. >> my apologies for being a few minutes late. but i'm glad to be here. i consider myself one of your grandmothers. i was a principal co-author of law of 2004,nce whes
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