All right. Im going to take the opportunity of this lull to begin the session. So im not going to spend a lot of time on introductions. I do just want very briefly, with us from brookings and law affair, this is a real opportunity, because matt, my copanelists interviewee, im not sure what to call him when theres only two of us, has a real remarkable diversity of experience with 702. And so i actually met matt way back when he was working on gaugh guantanamo issues once upon a time. He became general counsel at nsa and went from there to run National Security. As i think youll hear a lot of 702 material. And so let me start by just asking you, on a scale of 1 to 10, how important is 702 to u. S. Counterterrorism mission and to other national skuecurity progrs and what other interests . If i can channel the movies, ill say 11, for those of you who have seen the movie. The amplifier goes to 11. Ive had a lot of conversations about and it is you know, it is important i think to understand 702, to do a little bit of historical discussion, and the prior presentation talked a little bit about this as well. But the basic problem is has to do with the nature of fisa generally, the sort of landmark fisa statute from 1978. Like in a lot of connects, the law passed in 1978 didnt keep up with changes in technology. So and the wear fisa works is really the scope of what you can do under fisa is defined by the definition of electronic surveillance. That is the jurisdictional basis for what the fisa court can authorize in terms of electronic surveillance before an intelligence collection. And with that definition was adopted in 1978 based on the technology of 1978, were most of Long Distance communications were carried by radio communications. So there are lots of technologybased language in the definition defining the scope of fisa. That changed fundamentally in the 90s and 2000s, so that most of those communications were then carried over fiberoptic cable or a wire as the definition uses the term wire. That meant that instead of being able to collect that information without collection information, heres the important part, collection information where we were targeting nonu. S. Persons who were not in the United States, who typically dont have Fourth Amendment rights, instead of being able to do that without a probable cause warrant, we, being the Justice Department and the agency, nsa or fbi, we were having to go to the fisa court and get probable cause on an individualized basis. Fundamental problem, changes in technology meant people who didnt have Fourth Amendment rights were getting Fourth Amendment rights essentially by virtue of the government having to establish probable cause that the were an agent of a foreign power under fisa. It was an enormous resource strain, just thousands of personnel hours devoted to getting a fisa, probable cause fisa on a nonu. S. Person in yemen who was generally communicating with other nonu. S. Persons in yemen and places around there. But we were developing these packages that proved that they were an agent of a foreign power. That was a resource drain but it didnt make much sense because they didnt have Fourth Amendment rights, and we thought it made sense especially from a terrorism perspective of having a more agile means of obtaining their communications when we needed to, this is an important point, use a u. S. Based service provider. We needed a mechanism under fisa to compel their compliance as well as to protect them legally when they provided that information to the government. So it was a long answer, but thats kind of the nature of the problem. Okay. I want to shorten it. Thats not the thats not the sound bite. I want to isolate what it is, because were going to get to the problem of what happens when you turn off 702. I want to focus on like whats you know, what problem you are solving with it that you then stop solving if all of a sudden, say, on december 31st, it ceases to be law, or january 1st. As i understand what you said, it is that large numbers of lawful intelligence targets overseas communicating with other terrorists and nonterrorists lawful surveillance targets overseas, but whose communications are routing through the United States, would suddenly have to go through conventional fisa and thus be subject to wildly increased standards of a sort that weve never discussed as a society we want to give to, you know, aliens beyond the shores of the United States. Is that fair . Thats fair. All right. What kind of numbers are we talking about . So withe specific numbers are classified, so lets use big, round i think the government says there are a few thousand conventional fisa warrants a year. I forget the exact number, in the United States most years. Ballpark, where is the decimal point when were talking about how many overseas targets might suddenly become subject to fisa if you turned off 702 . And assume that all of those same targets were now, you are able to demonstrate probable cause and lets assume lets assume you could do it. Which in fact is counterfactual. But lets assume, lets assume theres x number of people overseas that you we now surveil under 702 without an individual probable cause, and those that are the universe of people you actually want to target. Right. For surveillance. And now you have to do it under fisa which were doing on 2,000 or something a year. What are we talking about . The numbers of actual fisas i think is around 2,000. The number isnt specifically reported by the government. The number this is an issue, i dont know if that number, if the broader number is public. I think there have been in the hundred thousands. I thought i saw that. So its a factor of 50 greater. I mean, your rough guess, how many of those targets could you get a conventional fisa against . Theres two dimensions to that problem. There is, could you establish probable cause, and could you amass the resources to, you know, go through those steps. Leave the resource question aside. Resource question aside, just a gut feel about the numbers that would meet the standard would be certainly under 50 , and maybe, you know, under 20 . Okay. So youre dealing with let me just summarize this. Hugely important program, 11 on a scale of 1 to 10. Major contributor to the president s daily brief. And if you turn it off, you have to scale by a factor of 50 the number of people that you are subjecting to conventional fisa, and for more than half of them, you couldnt do it. And for the half that you could do it, youre dealing with an intense resource allocation. Is that a fair summary . Yeah. Mmhmm. Thats right. And maybe insurmountable resources, beyond intent. So here, before we turn to the politics of this, im just trying to establish the scale of the problem here that the political system is about to confront. What did we do before 2007 . You know, this is a new solution to this problem, right . You know, fisa the problem actually predates 702. What were we doing, how were we handling it before we had the particular solution that we now have . And why couldnt we just go back to that . So, you know, theres so you go back, when i talked about before, you can go back 20 years. The problem was on the scale because of the Technology Issue i described. Person a in batswana and person b in yemen when they were communicating, were not communicating through a server in the United States. Thats true. The fact of the matter is many of those communications do now pass through the United States, through a u. S. Service provider. And so the problem didnt exist to the same degree if you go back 20 years, maybe ten years. Then of course you have the terror Surveillance Program. So 2001 to two thousand, i guess as i would recall, 07, the government announced that any electronic surveillance that had been conducted under the terrorist Surveillance Program was now being conducted under the fisa court. So you had a regime that was based on article ii authority. And a controversial legal interpretation. So then, so if you go back that far, you go back to the legal authority. So, you know, if you were to turn off 702 and say, now you have to go back and cover these same individuals under a probable cause finding under fisa, we would go back to the brute force efforts that were undertaken when i was there to try to cover as many of those individuals, nonu. S. Citizens overseas, simply with title i fisa. And, you know, the same problem we just talked about in terms of resources and establishing probable cause. In the absence of 702, you basically have a bifurcated set of options. Either a robust and maybe unsustainable assertion of article ii authority, just kind of do it on the president s own authority, or you do it person by person, under conventional fisa. Right. All right. Lets talk about the politics of this thing, because fisa 702 has an expiration tag on it. And its not the first time that the authority has expired. But it is the first time the authority has expired in the context of a political environment quite as difficult as this one. And so we are now six months out before 702 turns into a pumpkin. How do you understand the politics of reauthorization . So its interesting, the prior presentation, one of the questions i think at the end was what was the vote or in 2012, so i was sitting here and i googled it. I think the senate was like 73 votes for reauthorization in 2012, similar proportion in the house. So at least by the time it was december 20th, you know, time i december to20th, looming deadli of january 1, there was bipartisan support for reauthorization in 2012. Going back to 2012, we were very closely following this issue, and this was at a time where there was the tea party sort of movement had begun in congress. So we had started to see a change from when i worked on the legislation in 2008 where you had a sort of libertarian streak in the Republican Party that was kind of joined with critics on the left and privacy groups on the left to question some of this, right . So that had started to happen in 2012. Obviously those dynamics are still in play today. But i do think that it does feel like theres something thats changed from 2012 thats going to make this harder. Okay, so lets before we turn to the unique particularities of the Current Situation of which i can think of at least three, lets just talk about the general constellation of forces here. Youve traditionally had a core center, right of center and left of Center Support for these authorities, and you had a dissenting left Civil Liberties community and you had a more marginal libertarian right objection. My sense, generally speaking, is that even before this year, that dissent on the right has grown in strength. And im im interested in your sense of when you think about the politics of, you know, who are the opponents of 702, how much do you think of sort of conventional left opponents, the sort of aclu, and how much do you think of it as a sort of rush rebellion tea party thing . Let me go back to 2008. If you think about the law that was passed, first the protect america act, that was passed at a time that you had a very unpopular president , republican president , president bush. You had democrat controlling both houses of congress, and as a result, i think, the law that was passed represented a pretty thoughtful balance of the various viewpoints on how to protect the country and protect privacy, the basic challenge of building a statute that gave the Intelligence Community the ability, speed to collect vital intelligence while building in a number of safeguards involving the fisa court, the targeting procedures, mineralization procedures, the fisa court authority, all of those, the oversight mechanisms built in, all the things we learned about an hour ago. They were all part of this hard fought compromise where these groups this was not like a law that was shoved down the throat of one party over the other, given the nature of the executive branch in congress. I think thats important as you think about the opportunity state of play. And i guess one point to make, i think, ben in response, is that i dont think my own sense is, when you talk about the critics, i dont think there really is much debate about the fundamentals of 702. Maybe im wrong, maybe im naive or hopeful, but the value of it and the Core Principles of how it works, i think theres general support for that. Theres obviously some critics of the law on some of the on some aspects of it, but i think those aspects are on the fringes of how its used as opposed to the core of not requiring the government to get probable cause establish probable cause for non u. S. Prisons overseas to collect foreign intelligence. That seems to be pretty broadly accepted. I agree with the that, with the following can haveat. I think you can accept that broad principle and then caveat the broad principle so often and so neurotically that you end up eroding the underlying principle itself and creating effectively a lot of the workload burden that the statute was designed to eliminate. But okay, if we accept that there is a core reservoir of support here that is strong, whats changed . You just said you think this year is going to be harder than 2012. I share that and i also note that the aggregate legislative progress that weve seen toward reauthorization so far has been something close to zero. And moreover, theres another intervening event that i think is disturbing, which is the protect america act 215 debate which is a different subject but it also kind of flows out of the snowden revelation. And that bill was ferociously contested. The program was actually allowed to lapse for a while. I dont think the legislative process associated with that was a harbinger of anything thats likely to happen to 702. Im interested in what you see as the current legislative politics that are different from the politics four or five years ago. Ill take a shot at that. Youre closer and better at knowing what the politics are than i am. I read the paper and try to stay up on this but i wouldnt hold min myself out as an expert on the political landscape. But there are some big things that changed in 2012. 2012 was hard in a way because of the libertarian streak in congress that had some critics on the right which we didnt have in 2008. The support of the right was kind of a given going into 2008. 2012 was harder. The big things are snowden, 2013. If i asked this group, im sure people wont raise hand but how many people believe that nsa is tapping directly into the central servers of several u. S. Based internet providers, i suspect many people would say, yeah, thats true because that was the lead story in the Washington Post shortly after the snowden revelation. Turns out not to be true. Its not true at all and really knowablely not true at the time that that article was written. And the post to this day has never run a correction for it. And they got a pulliitzer pre for it. We had an open debate where we established the authority to be able to do this and it wasnt the nsa tapping directly into the central servers of google and yahoo . But it was on a slide that was on a training slide apparently. Snowden, dont get me started on that, obviously. Thank you for pulling me back from the brink. We have snowden, and you know in some ways a lot of that, i think, has run its course is my sense. You brought up the 215 debate. That obviously was the sort of most controversial aspect of what snowden revealed, and thats been largely addressed. I feel like much of that has sort of dissipated. But it still informs the current climate i think. But then youre not going to say President Trump so i will say President Trump i was going to say it. Today at least a tweet from the president , the real story is unmasking and surveillance of u. S. Persons, something to that effect. Thats the real story. And that is something that we just havent seen before, that we have what in particular . So it is its a number of different facets of the same thing but its a strong message coming out of the white house of distrust of the Intelligence Community. That in particular comes out in comments about surveillance. Going back to general distrust around the russian story, that goes back to preinauguration to the false statements about being from the president that he was subject to surveillance by president obama, to comments by chairman nunez about potential illegal unmasking. So this creates an atmosphere of distrust of what the Intelligence Community does, and you see it seems to me you see cynically people who know better on the right embracing those views to support the political position that the president has taken. Thats the best i can say. There are a lot of folks who probably know this issue and know this better than i do. But lets break that down because i think you raised two issues that are interrelated but i think discreet from one another. One is the messaging from the president alleging illegal use of surveillance authorities and illegal unmasking of people. Traditionally, we have relied on the executive branch not merely not to engage in illegal wire p wiretapping with either however many spaces, however between wire and tapping, not merely not to engage in it but to be the explainer of the legality of the Intelligence Communitys behavior. I think it does create a very difficult environment when the president is saying things that are that we would regard as people like me anyway would regard as wildly irresponsible if the aclu said them, which by the way the aclu wouldnt. And so i dont really understand how the executive branch, under the circumstances in which it is accusing itself of unlawful behavior on a daytoday basis, goes to congress and asks for renewal of these authorities, and i dont really understand how a reasonable member of congress under those circumstances, whether they believe the president or not if you believe the president and the Intelligence Community is doing these things, it seems kind of nuts to invest it with these authorities, right . If you dont believe the president s tweets and comments about these things, it seems its a tough sell to invest him with these authorities. And so im left with a as a fervent supporter of these authorities, im left with a real perplexity as to how you react as a legislative body to the executive systemically accusing itself of misconduct. Thats i think a really good way to pose a dilemma, because i agree with both of those. On the first, does Congress Really believe that the Intelligence Community is doing the things that theyre saying. I think the answer by and large is no. I think theres a parallel universe. Just to be clear, do you believe a word of it . No. I mean, not in the things i said, the illegal surveillance illegal surveillance, evil unmasking conspiracies in which, you know so, do you belie believe just for the record, i believe but i want to clarify it. Do you believe that the Intelligence Community is using its authority lawfully and the president is misrepresenting the conduct of his own Intelligence Community . Yes. And id say not just as an observer but a former general counsel at nsa and official at nctc. Now, which is to be careful, there are nsa, fbi and d. O. J. Who make mistakes and there are kplien compliances and we know that that happens. Some are quite public and some are not known, at least not publicly known in terms of their specific nature. So not to say that the system is perfect, but the things that the president is saying i believe are not true, that in my own experience theyre not true. The president isnt the only one whos saying them. The other person is the chairman of the house Intelligence Committee. This strikes me as another very peculiar element of this discussion, that this is a committee that is both an oversight body but also a body thats supposed to be able to say, hey, what is and is not happening, and in the past the Intelligence Committee leadership have, particularly during the snowden revelations so even very recently have played this very Important Role of saying, hey, we have been fully briefed on program x and we have confidence in the legality and appropriateness of the agencys behavior under x circumstances. But here you have a situation in which chairman of the Committee Goes to the white house to i have trouble even quite understanding what hes purported to do, but to receive a bunch of information and then to release a bunch of information, all of which was about in some sense these alleged misuse of an unmasking of presumably collected 702 or conventional fisa material. This leads to his recusal from the russia matter. But immediately upon that happening, there was discussion in the Intelligence Committee of what this means for 702 reauthorization. Does it get harder. Seems to me that makes the environment much, much more challenging, yeah . Sure. Going back a step, everythings harder right now. Everything is harder. Its harder to see a nonpartisan treatment of an intelligence authorization bill, a bill that authorizes this authority. I do think that look, the nunez episode which i think does make it harder, i think it is representative of what the rest of the Intelligence Committees, particularly when you include the senate Intelligence Committee, include the rest of the house Intelligence Committee in particular, Ranking Member adam schiff, this is not his experience again, i think it was sort of an isolated episode. I agree with you, the idea of the chairman of the house Intelligence Committee going to the white house is not in my experience. Like, that doesnt happen. That is a very odd, strange thing for him to do. And theres a big difference, you can compare what he said, what chairman nunez said to what chairman mike rogers said in the aftermath of the snowden investigation. To your point, how the Intelligence Committee reacts to what the Intelligence Community is doing. All of which is to kind of agree with you that this is a bit harder. The nunez episode, i dont know how much stock to put in that as something thats really changed the dynamic. But if i could go back to something you said before, ben, i think youre right, its a good observation that if you dont think what the president is saying is true, how do you invest with these additional authorities. It becomes a real dilemma for people and ill put myself in that position of who worked on this authority trying to imagine dangerous people or difficult situations in terms of whos in the white house but not necessarily anticipating somebody like donald trump. So, one answer to that is to 702 i think reflects a law that has substantial oversight and compliance mechanisms built in so that it would not be i think you can look at it and think this would be very difficult for a president acting on his own accord to abuse this authority because of the fact that all three branches of government are directly involved in overseeing how its used. One other big, seems to me, legislative impediment, other than the general atmosphere of congressional dysfunction which is something we havent talked about but is a background condition, and that is, at least speaking personally, i dont know whos going to quarterback this thing. In 2008, i knew exactly who was quarterbacking 702, the creation of 702, and i knew who was doing the work and i knew who had the clout to do the work. In 2012, i knew who had the clout to do the work. But right now i look at it and i say, all right, the president not merely doesnt have the focus, doesnt understand the issue, hes actively tweeting that the authorities are being misused, right . The fbi director has been remov removed. The dni is not, at least as i can tell, sort of highly energized and sort of being the person whos going to drive this train. So my question is, whos the quarterback of this thing . Wheres the energy between now and the end of december going to come from to get this thing done . Law fair, do you think . Just for the record, i did not put him up to that. 2008 the white house was fully behind it and it was director mcconnell, dni, the attorney general and ben powell. And ben powell at dni especially. 2012, similarly it was also the dni and the Justice Department together. Now so you dont have anyone at nsd yet so theres not Political Leadership there. Its hard to know where this im basically agreeing with you. Its hard to see where the center of gravity is. That doesnt mean it wont come around. As of even last year the Justice Department was starting to pull together the effort a bit. I know folks there were thinking about looking head to 2017. Director coats certainly has the ability and infrastructure in place and especially given his role on the senate Intelligence Committee, he understands the issues. I think its a matter of making this a priority and understanding the importance of this and saying, okay, of the three things were going to work on this year because thats how we did it in 2008. You picked a couple of things and decide this is what youre going to work on. I think thats the kind of effort that will need to take place. One optimistic way to think about this is the old phrase, theres nothing like a hanging to concentrate the mind, right . As you get into the fall, my colleague, susan hen asy always said going dark on 702 for even 24 hours is a National Security effort of the first order. As you get toward that actually happening, people will focus and a lot of extraneous stuff will happen. What are less reasons that you can think of would leave you to be that pessimistic . Im actually not that pessimistic . Why . One, i do think that there is broad consensus around the core. I agree that you can chip away at it and make it almost operationally difficult to use to the same degree, but i think that the experience is that weve had with 702 since 2008 has created a general consensus that theres true value in the way it works and not a lot of criticism about the Core Principles or core provisions. Thats one. I guess two is, as much as there are people who are very suspicious, who are skeptical of government abuse of this authority, there really arent concrete examples of it being abused. If you ask folks, show me where theres been a problem of a serious nature with compliance issues, some of them are important or significant but not, i think, real abuses. So general ly, the Civil LibertiesOversight Board found that the law had been implemented thoughtfully and rigorously. Thats one reason to be optimistic. Having said that, if i were going to be the dni general counsel or the head of nsd, i would not make christmas vacation or winter break plans. I would assume i would not plan to go skiing then. I would think this is going to come down to the wire. Typically thats what happens with these sunsets. This e they do tend to come down to the last minutes. I guess another reason to be optimistic is there are some areas where there will be compromise that will give people with concerns a greater degree of confidence around transparency. Thats another reason to be somewhat optimistic. I want to have you spell out a little bit of that area as a possible compromise, but before we do that, one thing about 702, it is not an on off switch, right . If you were still agency general counsel and you get to some date after which you say, hey, if were not sure we have to were going to have to come january 1, we have to start winding it down now, start making contingency plans, those operational decisions are eno eenormoenor enormous Time Investments for multiple agencies. Im obviously not asking you for anything sensitive, but what should we think of as that date, whats the date after which these agencies have to start thinking about, hey, we dont know this is happening, we need to start making technical changes, winding programs down, having contingency plans in place. Thats a great point. People dont necessarily realize how disruptive these sunsets can be to planning. Its not really an option just to pull the plug at midnight. Go back to title one. You need to start planning for this in advance. I dont know the date. I would expect that there are people thinking about that now, the career folks at nsa and d. O. J. And fbi, particularly in the legal offices. Theyre thinking what are we need to be planning for in case this does expire. Now, at the same time, id have to go back and read carefully and im sure there are folks in this room who know this better than i do, but there are ways to think about the statute and the authorizations that have been granted that might allow for there to be continued collection after january 1st in the absence of a statute. I dont know that. Id have to go back and carefully read it to see, but i think that there are provisions that allow for that. I think thats right because what actually expires is the authority to seek new orders, and so i think you could, if you went in on the right date in december and the fisa court authorized an order december 31st, you could imagine that order having a year of life or six months of life beyond the expiration of the statute. That of course assumes you know what the courts going to do. Thats it. Even with that, you are still then having to deal with providers who are going to be very theyre not going to be too keen about an expired law or an existing authorization and trying to convince them that theyre covered basically in complying. Its kind of a nightmare scenario. We kind of went through that with the protect america act in 20072008. So, before we turn to what possible compromises look like in your judgment, im just interested in how controversial within the community what youve described today is and for that matter what ive described today is. Theres a National Debate about these authorities, are they a good thing, a bad thing, are they too broad, but within the community is there any disagreement that it would be a disaster if this authority lapsed . I hate to speak for the entire community but i really dont think so. I dont know of an issue or an authority around which theres so much consensus to its value in this. My own sense is that this is a theres really no dissent within the community about the value of 702. I think basically thats and that its well regulated. Again, compared to a lot of other authorities, this in 2008, as i mentioned, was passed with a lot of compromise built in to address concerns around privacy, Civil Liberties. Now the Community Wants a clean reauthorization. Nothing in congress is clean these days, and my assumption is just as with the protect sorry, the usa freedom act, theres going to have to be some compromises of some kind to get it done, if only to give people a facesaving opportunity to vote for something or not to hold it up. So the question is, whats the realistic latitude for compromise . What could you shave off of 702 today without damaging the underlying authority . The place i would look to answer that question is reporting and transparency, so look for ways in which the government can provide more information about how it uses the authority of 702. I would try to hold the line on h the more operationally oriented aspects of it. Thats sort of reading the debate a bit down the road. Ill be specific because i know youre going to ask me. Youre not going to let me just get away with transparency, a general answer probably. But i think the issue that does strike me as one that is that goes to the heart of some of the concerns is this notion of incidental collection. For folks in the room, the idea that when you are targeting somebody outside the United States under 702, you may collect the other side of that communication, and that could be a u. S. Citizen in the United States. Youre not targeting that person but you collect that end of the communication. Thats what we typically refer to as incidental collection. And the government has not has sort of resisted disclosing how often that happens where a u. S. Person is caught up in that. Do you think the resistance is a function the government describes it as technically extremely difficult to describe the number of people. By the way, im pretty sure i have incidentally been collected on and ive written about that. Is your impression that the fundamental resistance to releasing a number is that its just very hard to calculate, or is there something more to it than that . A couple reasons youve heard. One is that its hard to calculate. You also heard the argument that it actually is counter to the interest of protecting privacy because it would require the government to go in and figure out is this person a u. S. Person and sort of dig into the communication further. I think those are probably right. I do think technically it would be hard to report like a lot of reporting requirements are. Given the concern around this and the idea that this is maybe ill talk about this but theres a sense that this is somehow counter to what the statute really is meant to authorize, which is not true, i think. Ill explain what i mean. In other words, the idea that you collect onetenth of the United States as a consequence of targeting somebody outside of the United States. Theres a sense that thats inconsistent with the purpose of the statue and therefore there should be more public reporting about how often that happens. I think thats just wrong. Thats my view. That issue was debated in 2007 and 2008, the one question in particular, and congress had a lot of opportunities to limit that statute to prevent exactly that and they passed them all up and they did it intentionally. Thats kind of what i was going to say. I think thats a myth about the statutes when somebody will say its foreign intelligence, all you care is foreign intelligence, overseas intelligence or intelligence that only involves somebody who is overseas, when in fact, and speaking as somebody who was the recipient of this information at nctc, we were obviously, obviously extremely interested in who that person was in the United States, who was caught up communicating with somebody overseas in yemen or pakistan. That was critical. Now, there are procedures of what you do with that information, but that was always a purpose of the statute was to identify that person in the United States. Look, and having been the incident in which im fairly certain i was the subject of incidental collection involves a situation in which i got a call from the fbi warning me that was a Cyber Security target of some actor. The context of the conversation was opaque enough that i dont think it was a simple domestic criminal matter. It wasnt like an Identity Theft thing. My assumption was that there was some communication, may or may not be 702, in which information about me was incidentally collected on somebodys system overseas, maybe domestically but i suspect overseas, and i got a call to warn me. So we have this assumption that if youre the subject of incidental collection, thats a reflection of a Civil Liberties violation. To the extent that this happened and im pretty sure that it did, i consider that a protection of my Civil Liberties, not the other way around. I actually wonder if the incidental collection issue assumes a Civil Liberties violation in lots of situations in which actually that would not be a reasonable assumption and that sometimes its affirmatively protected and sometimes its just neutral. In your situation i completely agree with you. I do think that a common way in which it matters is that the fact that the incidental collection didnt train the fbis focus on the person in the United States, not just to warn them that theyve been potentially a victim but that they are now a potential target of fbi scrutiny. Sure. Thats sort of the terrorism scenario. But so folks know, what happens at that point is the government, the fbi, and the lead obtains a title one fisa or seeks to obtain a title one fisa to establish probable cause on the person in the United States. So the law has provision after provision that prohibits the government from trying to focus on the person in the United States without getting a fisa, a reverse targeting which is prohibited in each possible perm yu tags that you can imagine in the statute itself. Lets take a couple audience questions. We have about ten more minutes. Wait for the mic and introduce myself. There may be a misperception among some people that 702 somehow wasnt supposed to authorize incidental collections. I think most of us in the Civil Liberties community are well aware that thats exactly what it was intended to offer us, that one of the main purposes of the statute was so that communications between foreigners and americans could be picked up without warrant or without a fisa order i should say, so that the government could see which americans they wanted to focus on. But i just want to point out, theres a bit of a tension between what you just said about we were very interested in those communications. Its critical for us to know who that american is and then to say this authority is targeted entirely at foreigners, not u. S. Persons, just foreigners. At the same time youre saying i wanted to know who the american was on the other side. I point that out because i think theres a lot of misunderstandings about what incidental is. Part of the problem with that term is it suggests, it allows the government to say this statute is only about foreigners, our interest is only on foreigners and thats clearly not the case. To their point, its important to be really precise. Im not in the government now but in terms of my own understanding, my own way i thought about it was we were trying to figure out who in the United States could be a terrorist. One of the great ways to do that is to see who might be communicating with somebody overseas. The law authorizes the targeting of somebody who is not a u. S. Citizen overseas and the vast bulk of the collection is really foreign to foreign. Folks should know the vast bulk of whats collected when youre targeting somebody in yemen or pakistan whos not a u. S. Person is other communications with people in yemen that were not u. S. Persons. Every once in a while when your target communications with somebody in the United States thats a critical important piece of intelligence and of course everyone knows the zazi case, one of the cases thats been declassified, is an instance where coverage under 702 of an Al Qaeda Currier in pakistan, that person was communicating with azazy in aurora, colorado who was asking for bombmaking instructions. It was only through 702 that that person was identified. Without 702, i think its a fair conclusion that it would have been very hard, if not impossible, to identify azazy at the time he was identified which was shortly before he moved to he traveled to new york in order to carry out a plot to bomb the new york subway. Just to add to that, i dont think there really is tension actually. I think the 702 allows only the targeting of nonu. S. Persons overseas. No one has ever, to my knowledge, at least no one who knows anything about the statutes, has ever argued that it doesnt authorize the collection of communications that arent exclusively overseas. It allows targeting of people who are nonu. S. Persons overseas. They communicate with people all over the world, including in the United States, and by the way, if youre trying to protect the United States, those specific Communications May be of particular interest. I just actually dont see where the tension is there. It seems to me that 702, one of the virtues of it and one of the reasons i sort of felt this at the time in 2007 and 2008 was that it actually told you very clearly exactly what it did and didnt authorize. Its remarkably nonopaque statute, and the stuff was debated. Look, i agree with you that people were actually quite upfront about it, and so im i wonder, like, the term incidental has this like people have this idea that its deceptive, and it doesnt seem deceptive to me at all. It just means youre not the target. [inaudible] we all know what they mean but they carry connotations that dont fit that well. Other questions . Yes. Matt, you mentioned earlier that trump tweets show the connection between the white house and the Intelligence Community. How has that affected the Intelligence Community, the distrust in terms of their jobs or whatever . Lets get the last question, one more, and then, matt, you can take the final word. Hi. Yesterday it was reported that devin nunes issued subpoenas requesting information about certain unmasking requests made by former Obama Administration officials. Can you talk about, is that type of request something that congress usually has the authority to request information about without subpoenas, or would he have had to actually issue a subpoena to get that kind of information . Thats an interesting question. Ill take that one and yours second. I didnt see that report, but based on what you said that does strike me as out of the ordinary. Certainly the chair of the house Intelligence Committee would have the ability and the relationship with the Intelligence Community to obtain information about unmasking requests, which for everyones purpose, the general rule of the mineralization procedures is to mask and redact the name or identifying information about u. S. Persons who are part of intelligence reporting. But you can request if its necessary to understand the importance of that information that the name be unmasked or identified. Pretty routine for that to happen. Its a protective measure. I guess it strikes me unusual for there to be a subpoena for that information that you described. My own experience with the house Intelligence Committee, we were up there all the time on a weekly basis, multiple level Staff Members talking about issues that were well within their oversight. This would be an issue within the purview of their oversight so that strikes me as a little out of the ordinary. The broader question about the Intelligence Community, i do think i do worry about the morale of the Intelligence Community. There are folks in here who are current members of the Intelligence Community. Im not. But i do think that the statement directly from the president that appeared to sort of denigrate the Intelligence Community or dismiss the information thats being provid provided, it has an impact on the workforce. It has to. That doesnt mean my sense from folks im talking to is that theyre still obviously committed to doing their job, but i think over time you might see morale decline. The other thing is, i mentioned this to others at nctc, i was always struck how i would go in in the morning, get to the briefing and there would be an incredibly talented group of people, mostly younger people who had been up since 3 00 in the morning to prepare a briefing and they could have done a lot of Different Things than work there. They could have gone to wall street. They could have gone to silicon valley, and they wanted to fight al qaeda. Thats a pretty incredible thats pretty incredible. And if we dont protect that as the stewards of that sense of mission, you cant take that for granted. But then secondly, i think beyond just the workforce is the substantive certain that you have people who are providing critical information about our National Security and our Foreign Policy interests and if that information is not being trusted and acted upon by the primary consumer, that being the president , then i think theres reason to be concerned about whether or not policies are based in fact and based on the information that we spend a lot of time and effort obtaining in order to ensure thate