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Transcripts For CSPAN3 Politics Public Policy Today 20141008

whether the nsa collects any kind of data at all about millions or tens of millions of americans. he said no. but much more often there is just radically misleading information. there are comments made. there is information provided that if a friend or family member did that to you, you would consider them to have betrayed you. you would consider them to have deliberately led you down the wrong path. here is an example, the collection of all the call records. he does keep coming back to that and not the overseas collection. >> i want to go through all of it. >> but for a long time the government said, we won't tell you at all how many times we use this power that the patriot act gave us to collect business records. it's the business records provision. it would -- it's top secret, which means it would do grave harm to the security of the united states if we told the number of times we used it. then congress passed a law requiring them to disclose how many times they used it. they came out one year and they said, it turns out there's nothing to worry about. 2009 they said, we have only used it 24 times in the last year. don't worry about it. it turns out you needed four of those times -- four quarterly applications of this power to get trillions of records, trillions of call records, substantially all the call record, because it practiced the way the program worked maybe that it's a large but not -- a fraction of that but not the entirety of it. they say 24. it turns out it's trillions of records. they say we only take it when it's relevant to a terrorism investigation. their meaning of relevant is all of them. every one of them could possibly be relevant. we will collect every one of them. if they had been straight with the american people, if they had said, we would like to collect all the call records and we will regulate our use of them as follows, and they had done that around the time they started collecting them before congress allowed it, soon after 9/11, or even if they had done it in 2007, they might well have won public support for it. but doing it behind our backs and the highly misleading statements about it have led to considerable degree of shock when people find out what tle doing. >> i would like to go systematically through a few things that you have both referred to. take three or five minutes on each of the following three things. the court and how it works. the 215 program and the third 702. starting with the court. it's my understanding they were created in the 1970s as it was referred to coming out of a recommendation from the church committee which uncovered abuses in the american untell gens program before that. the spying on martin luther king and all of that. and to prevent that, they said we're going to create this court, this specific court. my question, general hayden, how does the court work? can someone who is an intern or young people like edward snowden or one of the american university students who are interning at nsa or cia, can they send an e-mail and say, i'd like some data on this person? or what is the process to have a request -- how is the request made, and what process does it go through? >> lots of things to be said about it. it's incredibly odd. let me tell you why it's odd. it existing. we are the only western democracy to take these questions to the third branch of government. other countries, last time i checked that were democratic like the united kingdom issued them within the ministries. it's the grand american experiment to involve the third branch of government in what is essentially -- i told you historically an exercise of executive prerogative in terms of espionage. what's unusual is that we do it this way. in order to do it this way we put restrictions on the court because it cannot be as open as other courts in our system. it is not adversarial. on the other hand, tony soprano doesn't get a lawyer when the fbi wants to go with a warrant on him. unfortunately -- i mean this. unfortunately, when we set this up, we used the language in law for which we use warrants in criminal proceedings in order to go up on wiretaps in fbi and other investigations. there is a sharp distinction -- it's not very often made in the public discourse about this. this is a sharp distension between doing surveillance for law enforcement and doing surveillance for foreign intelligence purposes. i read very often common teary of suspiciousless surveillance. that word has absolutely no meaning to me as a foreign intelligence officer. i don't collect information, particularly we want to talk about foreign nationals. i don't collect information on foreign nationals because they're bad. i collect information on foreign nationals because they're interesting. i collect information on foreign nationals because their communications contain data that will keep americans more free and more safe. they do not have to be bad people. do not confuse the two. so now the court is designed to warrant collection against protected persons. we have reason to believe that a, b or c is the agent of a foreign policy. >> by row tektprotected, you me american citizens. >> anyone in the united states of america and american citizens, including diplomats and any organizations comprised of a or b above. in order to collect against them for foreign intelligence purposes requires a warrant. in addition, because of the way the law was written -- remember i told you it echoed the law enforcement statute? it puts specific restrictions on collecting on a wire in the united states that did not exist for collecting out of the air in the united states. i'm not talking about grabbing your cell phones. what i'm talking about are satellite bounces into the united states. >> when you want a warrant on a protected person, what do you have to give to the court? >> it gets a request for a warrant that looks like -- about the size of the phone book in the city of cincinnati. it's about that thick. it's heavily laden with a lot of league jargon. it's not all boilerplate. it requires specifics. in an essence what you are trying to prove to the judge is that the individual you want to target is the agent of a foreign power. i recall in one instance -- >> not anymore. >> that's what it was. it changed in 2008. >> that changed with the patriot act. which is a lot older. >> protect america act which came between the two. >> but you are describing -- i will let you finish. you are describing an old model irrelevant to every story that's been written. >> that's not true. that's not true, bart. >> go ahead. >> in any event, to collect on a wire in the united states you need the court's permission because of the way the law was written. >> the big packet of information you were talking about, is that submitted by anybody at nsa or c cia or department of justice or does it go through a lawyer? >> crafted at the agency that wants the coverage. it will go through a series of bureaucratic stops. it ends up at the department of justice. all the ones i'm aware of went through the white house for approval. >> one of the things that we hear is that they have approved almost every request that they have had. is this -- this gives the impression it's a rubber stamp, irrelevant process. that's why i was pushing for details about how it goes through. >> if the judge isn't happy with the application, it's withdrawn. it's not rejected, it's withdrawn. it's redone. there is a dialogue there. no one who has worked the process would describe it as a rubber stamp. >> is this your understanding of the process? >> almost everything that mike is talking about still happens and is accurately described with one exexception, i think. that's not the stuff people are writing stuff about. that's not what public debate has been about. that's the old model. they still use it for specific targets. we have got something maybe just short of probable cause. it could be a suspicion under the law. but we have reasons to think that this person is not -- it used to be they had to be an agent of a foreign policy. it has to be relevant to an investigation of an agent of a foreign power. they have to demonstrate the relevance. this is an individual target. they want my records. they want your records with a name on them. it's in ones and twos and threes. there are a few thousand of those a year. the programs we're talking about now are -- >> let's make that shift to the 215 program. >> 215 and 702 -- there are four kinds of data that george bush ordered mike hayden to start collecting after 9/11 without the benefit of a state ut and without the benefit of court supervision for several years. and until the justice department rebelled and two dozen people were about to resign because they judged it to be illegal. this is the famous surveillance from the period of -- it was disclosed at the end of 2005. there is metadata about data, records of who talks to whom and when or where they are or what kind of equipment they are using. that's metadata. then there's content. they were collecting broadly speaking both for internet communications and telephone. internet communications are not only e-mail. they are also your skype chats. they are the documents you have stored in the cloud. they are video. they are -- it's the universe of content that travels the internet and then the telephone calls. and what happened after the justice department rebellion and after some public knowledge began to lead to debate, is that the court was asked to switch gears and did switch gears. no longer was it only issuing warrants for individuals joe and tom and jane and mary, it was now asked to authorize either quarterly or annual basis huge programs of surveillance in which the court would now say, once a year that you may collect anything that you like from google and yahoo! and microsoft provided that you certify that it fits the following targeting rules and that you treat it and handle it according to the following minimumization procedures which is intended to protect the u.s. citizens. there's some protection there. i don't deny that. but not all of it is as airtight as one might be led to believe. in any case, the court is now saying, here is a program under which you have authority to do this. you don't have to tell me the names. you don't tell the court the names of the people you are collecting on. you don't have to tell -- there's not an individual warrant for that person. it used to be that in the intelligence world, it wasn't wrongdoing necessarily but there had to be a specific showing that the individual was likely to be a valid foreign intelligence target. that's gone now. the court has accepted and interpretations of the law that nobody in the public and frankly almost nobody in the community of people in the unclassified world who study this stuff very closely and i would count myself among them, because several chapters of my last book were about the programs, i never suspected that the executive branch had told the court and the court had agreed that collecting every single person's call records was their definition of relevant to a terrorism investigation. >> why was that done? >> three or four things. bart's description of what went on under the terrorist surveillance program when i was director is not quite accurate. that's about all i can say about it. bart's right about the court -- about then the executive branch going to the court for warrants that were broad generalized warrants rather than specific targeted warrants against individuals. what i was trying to describe earlier was that the act put restrictions on who you could target and on kind of the techniques of targeting on a wire inside the united states. and in most if not all of the generalized warrants that i think bart is describing, have to do with the reality that an awful lot of foreign communications, foreign communications are in the united states. and we approach the court then for approval to access those communications whose americanness was created by their temporary geography. not by the commune kants. bart is right. in any intelligence collection there is incidental collection of people. there are procedure torz protect u.s. privacy. your question was why the metadata? >> yeah. so as i said, we have the first warrant in 2004. the chief judge of the court. in actuality, it allows us to resume things that were the subject of very heated discussions only the previous march. we did it by not relying on the president's power to conduct foreign intelligence, but by involving an additional branch of government, in this case the judicial branch, in order to get a ruling as to whether or not what it was nsa was proposing met the reasonableness standard of the 4thamendment. we are not protected against all searches. we are protected against unreasonable searches. it was felt that the best way do this within the constitutional structure was to go to a court that is broadly familiar with surveillance and to ask that question of the judge and in this case the judge did indeed issue a warrant. >> basically, the collect of metadata, what it is is collecting all of the phone call records and the nsa would store in its warehouses all of these records, which it would not access and not read except for when it had permission from a judge? >> no. let's take the 215 program. that's the one we're talking about. after snowden's revelation but before the president's speech, all right, so how it existed in that period, because it changes, nsa under the court warrant gets the metadata from the phone company which are billing records. those are records u.s. have shared with the phone call. these are third-party property. they belong to the phone company. they don't belong to you. nsa gets these records. you are not identified. all that's in there is fact of call. this number called, that number at this time for that long. how many calls do 350 million people make a day? you get an idea of how much data goes in there. actually, what was happening was this program was set up by me when most of us were making phone calls through land lines. it's much more difficult and more legally complex and the fact that our cell phones done have individual call billing, it was more difficult as people then went to wireless communication to get the same kind of information in. so as time went by, the percentage of american phone calls that were showing up on a dale will you basis, phone records showing up in the database was shrinking down to about 25%. the database is sealed off and can only be approached by about two dozen people at nsa all specially trained in the machines they use to make kwirryes of the database are key stroke monitored. what nsa does is take what is called a seed number, almost always a foreign number, a number that shows up in a safe house in yemen after it has been wrote up by special forces and we find it on an individual that shows he is affiliated with al qaeda and he has a cell phone. what nsa can do is go to the database and ask, does this phone number show up in here. if some number in the bronx says, yeah, i talk to that number once a week, nsa gets to ask that phone number in the bronx, what do you talk to. that's it. that's the metadata program. the change the president made in his speech is that nsa used to be able to do three hops, seed number to the bronx to who he called to the next one. president made it two hops. seed number, bad guy, bronx, one hop out. the president also said nsa has to go to the court every time it makes that query. this is very unusual. keep in mind what the court is judging. the court is judging whether or not nsa has a reasonable, arcticable suspicion that that foreign number collected through foreign intelligence is actually affiliated with i'al qaeda. it's not you the court is checking on. it's not your rights it is double booking. it's looking over the shoulder of the intelligence professional to see whether or not their intelligence judgment was correct. last full year nsa has records, that yelling through saying anybody talk to them happened 288 times. >> and then 702 and we will open it up to questions. >> it starts to get -- people's eyes glaze over. you are talking about nuances. this is complicated and difficult. let's take it down to fundamentals. i am not advocating a position. i know there are questions that belong in the public domain that we collectively -- boundaries we ought to decide. transparency enables checking society -- of the courts, of lobbying of voting and all the other -- and market power. people get to decide, i don't want do to do business with that company because it doesn't seem as safe. let's take big picture. a wallet goes missing in this room. what's the most efficient way to search for it? everybody gets searched. turn out your pockets. lots of societies do that. the british did that back in the 18th century. that, the idea of a general warrant, was a principal cause of the american revolution. it was one of the main grievances of the kcoloradkol o. the nsa wants that efficiency because global communication flows are enormous and because it can. it's never been able to do that before until very recent years. probably most of the these programs couldn't have happened before the year 2000 or so and the amount of data that exists in the world and produced and transmitted since 2000 vastly eclipses all the data ever produced in the world in all of human history up until 2000. there's a lot of it. they want access to substantially all of it. they're not just collecting metadata. overseaing, they are collecting content. there's a access point called muscular off the coast of britain somewhere at which the nsa and its british partner listen in on the giant flows of data, one strand of the cable transmits 14 times the print content of the library of congress every second. they are sitting on that. anything that looks like an address book, an e-mail in box or chat buddy list, they say we want that. they suck that in. that's considered content under law. when you intercept all the phone calls in a country or all the transmissions between google andrand yahoo! that's content. that's collected in bulk. the question is, are we comfortable with that? i understand why -- >> are people reading it? it's collected and sent to a server? >> obviously, humans can't lie eyes on all of that. once they collect it and there are certain to be billions of transactions -- billions of communications that are americans, they feel free to store as much of it as they can store and believe that they can use. for example, address books. they don't want all. they don't want owner list address books. they want address books of people that wear the fornmat thy know whose address it is. but they keep it and they feel free to search it once they have it. >> while you are finishing, let me -- we should open it up to questions. we have 40 minutes left. we have two microphones, one here and one there. we will ask people to line up, please. finish your answer. >> that's unusual. that's good. i'm glad we had an hour for this. >> so what i will -- carrie, okay -- i will ask you to just identify yourself and please ask a question, be brief. speeches you can save for later in the dorm. >> okay. i'm a graduating senior here. my question is for either or both of you. at what point do you want to start collecting on a terrorist subject inside the united states who is an american citizen? >> that's beyond my confidence. >> like -- you realize, we didn't collect on those kids. why didn't we? they're u.s. persons. they had a first amendment right to visit any website they wanted to visit. their web surfing was not monitored. and there's not a program that allows us to. >> that's not why the fbi and others did not monitor. when they got the tip from the russian government that the brothers -- the older might be up to no good, they did a preliminary investigation. they looked into it and said, we don't see anything here and they stopped. if they wanted to -- the tip from the foreign government and any supporting information they might have picked up would have given them lots of authority to do the surveillance. it's because they didn't think they were -- >> i'm sorry. i wasn't clear. that wasn't the point i was trying to make. given the tone of a lot of the coverage of the snowden revelations, there's presumption that nsa is sucking everything up. the fact of the matter is, they are not. in order to do -- bart is right. in order to get that, we would have had to have a certain level of suspicion and then go through the processes that allow them to be targeted. i get questions after boston, how come you didn't know they were going to those websites? because we don't routinely look at that. >> would you answer the question about the overseas collection of americans which is more intrusi intrusive? >> sure. >> here is google data center one. sheer google data center two in two countries. here is the line. the nsa goes in and sits on that pipe and tabs in anything and everything it wants even though billions of those communications with ill be u.s. communications ins dentally collected. why is that okay. >> let me make sure i understand the premise you are suggesting. you believe that g-mail should be a safe haven for legitimate foreign intelligence targets to the united states? >> if that's how you translate your question. >> that's how i translate your question. if i'm not on that wire, i'm not collecting g-mail users. bart said, this begins to hurt your head. we spent your evening here and we haven't gotten off of 215. >> we are now. >> the approach you use in collecting signals intelligence looks like a funnel. all right? you have access here. the next step is you collect. and then you process. then you read or listen. you analyze. you draw up a report and then you disseminate. you get the picture here? the funnel gets smaller. very often people use the number out here that describes the potential access and then imput that number way up the chain to the for more sophisticated and more narrowly focused activities here. that's not true. i go back to my premise. g-mail is not a safe haven. google is an international company. a lot of people you want to be -- google is a u.s. person in certain circumstances. by the way, that's actually not their cable. it's a virtual cable that they use. again, i ask you the question, hotmail, g-mail, safe haven? these are global e-mail providers. they are used by everyone. is your theory that can't touch it, eric will be really mad? >> i want to lay out another question. in one line, there's long distance to go between saying that g-mail should be a safe haven for terrorists and saying on other hand that you should be as the u.s. government siphoning in all of the content that crosses that cable. including all the american communication. there's some room for gradation in between the there. >> there is. i gave you that steps in which you can conduct the gradation. not everything you can access is collected. not everything you collect is processed. no, sir everything processed is reported. >> one last thing to point out that that exists here. the prism program, the first story i wrote about the nsa, is -- gives the nsa pmore power to get g-mail, all the google content from the providers with -- under and annual authorization from the court. it had quite a bit of latitude. it was not allowed to go in and say, let's sift through everything on the server to see if there's anything that interests us. that's what it is doing in the overseas collection. >> bart is right. there is a -- binary is too strong a word but i'm going to use it. there is protected communications and then there's everyone else. nsa truly does have an awful lot more freedom of action going after foreign communications. it's the nature of the business. that offends some of our european friends who do not attach privacy to a particular sovereign. but attach privacy to a softer, more generalized human right. i got it. that's a subject of discussion. but right now the american approach to this is that it is really a binary world, protected persons, persons who are not protected. nsa's ability to work over here under 12333, the order that bart suggested earlier but not without congressional oversight is really quite powerful. >> let's take a question over here. >> this is something i heard about reading newspapers about how various governments are trying to segregate internets from. germany is thinking about doing this. what would this have on the nsa's ability to collect information. is such a thing possible? is it possible to cut off the german internet from the american internet in. >> i have a few thoughts on it. one is there a lot more people and countries talking about their desire to sort of cut off the global internet and keep all their data at home than are actually taking steps to do it or will do so. because you are cutting yourself off from the world. it's tremendously damaging. it's not practical to -- there are people -- there are countries that say google, yahoo! from now on all the data produced by germans has to stay in german data storage. it can't do anywhere else in the world. it can't go into u.s. territory. the entire structure of the interne internetdoesn't allow that. then there are countries that want to -- at the extreme end, north korea want to cut themselves off, cut their citizens off from free debate, from free information and are taking this -- are using this nsa stuff as an excuse to strengthen that argument. in some ways if it were possible, it would be cleaner. it would take us back to world war ii when you could break the german military code. nobody would see any down side to it at all. this is a code that is being used exclusively on networks used by the enemy in a war. now if you try tro break encryption, you are -- everybody uses almost -- almost everybody uses the same stuff. when there's stuff that shows that the nsa knows about this or that entity that's got its own home brew, we're not writing about that. we're writing about things that have general public interest. if you are breaking the encryption -- the basic standards that run the internet because you want to get the bad guys, you are breaking everybody else's encryption. that's the way it works. >> question here. >> thank you both so much for coming. i'm a freshman in the school of international service. i'm a native of pittsburgh. i have a question -- >> we're from philadelphia. we used to think we needed a visa to go to philadelphia. >> i have one question with two parts. one for mr. gellman and one for general hayden. i would like to talk about the future. we live in a world of edward snowd snowdens. i don't think that will go away. ma my question is, in the future in the next 10, 20, 30, 50 years, this increasing demand for transparency and this general sentiment, the release of information, what kind of implications does this have for the future of organizations like the nsa and the cia and how they deal with those problems how they might change as a result? and for mr. gellman, what do these changes have among the sentiment of the american people and how the media responds and interacts with this information? >> i will go first and be very quick. number one, we have to recruit from the generation that produced edward snowden. that's a reality. that generation has a different point, a different come pass which it comes to transparency and secrecy than my generation did. that's reality. that's something that my old community is going to have to deal with. particularly since one of the major muscle movements in my old community has the generalize sharing of information. we used to have a principal called need to know. now the manta has been near to share. now you have snowden and this is really, really hard. one other impact of this is that when you decide to undertake an espionage activity, what can i gain over here and what can i lose over here. let's take the ones we have been talking about which is signals. what can i gain? i may be able to hear the head of state. and i hear the head of state's personal views. that's cool. what could i lose? you could really be embarrassed if that was made public. you make that judgment. this hand over here is not a moral hand. it's a political public relations hand. this is what i would lose if it were made public gets multiplied by the likelihood it's made public. and the general factor of the likelihood of signals intelligence being made public, particularly when you grab a signal out of the air, that factor is kind of like zero. it's undeteabltectiblundetectib. although the gain might not have been massive, the potential loss wasn't quite measurable because you couldn't figure out a way in which it would become public. with snowden, that number over here is never going to be zero again. you are going to have to factor in the insider threat that will make operations known that the target nations are never going to detect. that actually might be the strongest governor break on aggressive signals intelligence collection against some countries, not american guilt or american friendship. it's just that cal coup lous, the national interest has a new factor over here. >> i will try to be brief. in july, a month after the revelations started, keith alexander was then the director of the nsa gave a talk. and he said that he wished he could bring every american into his huddle, tell them the plays he was calling. but the problem is that if he did that, then the bad guys would know, too, and so it's too dangerous. that is true. it's true that if he reveals his capabilities then everyone can hear it. there's no more encapsulated communication in global affairs. but it's also true -- this gets to your question of how the american people react -- that when we did find out what was happening inside his huddle there were a lot of americans that did not like the plays he was calling. that is among the reasons why the existence of a classified stamp does not end the inquiry for me when i'm deciding whether something should be public. there's all kinds of stuff that's classified that's just sort of self-evidently trivial. i have in my possession a navy laundry manual for how you wash clothes aboard a ship that's stamped secret. i have also noticed that there's interesting variations in how classification works depending on the forum. there's an internal nsa report i wrote about and general hayden did not like my story in which i talked about the number of compliance incidents, either errors or violations of rules and occasionally of law. how many times did we have this kind of compliance problem? the internal report classified that as secret which by definition means that it would do harm to the national security of the united states if we knew the number of times they screwed up. that is relatively hard to defend. when they reported it to congress, it was classified top secret, special intelligence, compartmented and 91% of all staffers couldn't read it and it greatly restricted the oversight possibilities. the american public reacts when not only there's something that the u.s. government is doing, it's something they didn't know they were doing. something that they might have accepted if they had known in advance or had been openly debated. >> thank you. >> i wanted to return narrowly to the question of call chaining and ask if my understanding is correct. you mentioned there were only 288 i think was number. >> inquiries. >> but each of those which was until recently three hops, over the course of a year a phone call is on the order of 1,000 numbers, that's 1,000 is the first hop. the second hop would then by 1,000 times 1,000, a million and the third hop -- there's overlap. i'm overextrapolating. i wanted to -- when you talk about three hops, you are not talking about 288 things. you are talking about. >> the question was asked -- i'm relying on statistics who the former deputy director put out there. his final statement, we got 24 people who can do this. we asked it 288 times. in chris' words -- i've been doing this for a long time. chris' words in those inquiries implicated 6,000 numbers. i agree with you, that's not the raw number of hops out. this is an investigation. you are looking at this. it's just numbers. no other identifying data is there. what they are looking for are patterns that may -- you have the spider chart coming out of this chain. then you have this other dirty number that hits a number in buffalo. it's interesting when the second hop out of buffalo hits a second hop out of some other place. it's done an investigation. we are looking for links that might merit further investigation. >> chris didn't explain what he meant by 6,000. it's almost -- there's a saying in newsrooms, danger reporter doing arithmetic. it's hard to imagine how you can go one hop with -- on the order of 300 numbers and touch only 6,000. that means you have -- that means that you are multiplying only 200. that means that each number called an average of less than one person per year. here is what chaining is from a non-computer science person. we have heard six degrees of separation story. six degrees of separation on average. this is not just a play and a novel but also some important computer science work that was done a few decades ago which said that the mean number of hops you have to do to reach -- to touch every person in the world or to touch from any one person to any other person is six. let's 'spsuppose 300 people cal 100 people and multiply that by 100 and you get to 10 million. that's still a large fraction of phone numbers in the united states. >> it gets to you 1 million. >> 1 million. i count on my fingers. >> that's more than 6,000. >> it is. it doesn't mean they did chain three numbers from each of the numbers. they also said it was fewer than 300 numbers in this one year. they said the numbers have varied from year to year. you can be quite confident they have not varied downward. those statements are perfectly consistent with the possibility that some other year they had 5,000 seeds. they would not have lied if they said it this way. but that is exactly the kind of massaging of data in their public statements they have done. >> let's take two questions. >> i hail from gchq. my question is a little less technical. it's for either of you, both of you or neither of you. it's simply pretty obvious for the most casual observer that there's a national tragedy in the u.s. or any country, example of pearl harbor and 9/11, there was a reaction for -- we give up liberty for security. the patriot act. it takes time and then sometimes society scales us back. is it concerning to both of you or either of you that given multiple 9/11 or events of that nature in a short span of time that we could end up giving up a lot of liberty for a lot of security, whether or not you agree with the programs that we're engaging in? >> thank you. right behind you. >> i'm a journalist -- i'm an aspiring journalist. my question has to do more so with investigative journalist. in light of snowden's leaks, we have seen journalists have been accused of co-conspirery with whistle blowers as well as congressional members or pushing for them to be put into trial. i was wondering what your thoughts are on investigator jou journali journalism. >> i will jump in on the 9/11 thing. here is how i do my personal cal coup lous on this. despite my professional role, we're responsible for our actions as citizens and human beings. one of my great fears is that we do not use the authorities available to us right now. i use this metaphor. if that's a box you want us to play it and we can legally play in -- bart's articles raise issues about national debate. nsa will say, i got a president, i got a court that says it's good to go. until told otherwise, we're going to play 215 way out to the edges. all right? we're going to take the hops however many they take us. in the background ethical argument for that is that if we don't play fully within this box and we fail and we have another catastrophic attack on the homeland, the box you will demand -- not the one you will accept, but the box you will demand will be out here. so in one kind of reverse psychology sort of way, playing this aggressively within the law now is actually a protection against dangers to civil liberty in the future. >> do you share that, bart, that that concern that if any of these revelations make it easier for another terrorist attack on the u.s., that in the future it will perversely lead to demands for much greater surveillance? >> as an aside, everybody wants to talk about terrorism. that is not -- that doesn't account for nearly anything close to the majority of u.s. intelligence gathering. there are different purposes. it's an emotional trigger to talk about all this stuff as -- some of it. some of it isn't. our society has always had pen due lum swings. the different is what happens under a regime of extreme secrecy. when you intur japanese citizens and you can look at books and there are the pictures. we know when we have overreached and we can come to a calmer decision after a certain period of time and say, i don't like that picture. that doesn't seem like it was the right thing to do. the supreme court reverses it. when you are doing everything in secret, then -- or very large parts of your reaction are in secr secret, it's hard to decide whether we've gone too far. we are still all these years later trying to resolve the torture debate. the senate intelligence committee has voted to recommend for declassification some hundreds of pages of the executive summary of its 6,000 page report. it cannot publish its report under current arrangements, under current understandings of the way these things work. there's no law that says that only the president gets to decide what's classified. classification is an artifact of an executive order. in any case, we still don't know what happened. still don't know happened. very fully. i mean there's 6,000 more pages of conversation about it that they want to have and right now as of this date they're still precluded from publishing. when you have taken steps like let's collect all the content that flows across this cable or let's collect all the data about the phone calls that you make, or let's set up a set of rules that allow us incidentally to put tons of your communications in a repository and we will, by our own best lights with good motives try to protect you decide what to look at and when, we don't get to debate those things. we would not have this conversation if it weren't for snowden, disclosing things that the government internever intended to disclose. >> i add one minor thought to that. those of you who are americans in the room, you are citizens of a nation with the most transparent intelligence community on the planet. there is no one anywhere near us. that doesn't make illegitimate barts argument that it has to be more transparent. debris that it does but you need to understand the baseline from which you're working. you have more information about your country's espionage, freely available than any other citizenry on the planet. >> let's take two questions over here and we'll close that. >> my name is james manning, graduating from the school of international services and my question you've heard a lot tonight about classification and how there's a shock reaction about sources and methods and my question is then how do we go about having the debate without compromising intelligence undertakings with the current sources that are being used while also sort of avoiding these shocks that americans are appalled with particularly as i mentioned in general hayden's answer. >> actually the two speakers just before me pretty much covered the questions i was going to ask so someone else from this side. he hasn't really answered my question. >> about the journalistic -- i'll be happy to answer that, i got distracted from it, sorry. on the journalistic one, there are some alarming signs. there have been more leaked probes, leaked prosecution under obama as everybody's read than all previous presidents combined. they have used pretty aggressive means of surveillance against the associated press and against fox news. their legal construct is that a leak of classified information is a counter intelligence problem. counter intelligence is a legitimate foreign intelligence surveillance target and therefore that makes reporters doing reporting legitimate targets of quite intrusive methods, electronic surveillance, so i spend a lot of my time and a big tax on my time and efficiency trying to protect the security of my communications not only from the u.s. government which has been my threat model as an investigative reporter for a long time but foreign governments who want documents that i have that i don't think should be public and might want to try and come get them. all that being said, you know, i'm sitting up here on a stage, a free person, not in handcuffs. having a civil conversation with general hayden and you could read the espionage act or 18 usc 798 or otherious other statutes. there are ways to read it and various ways of prosecution under which i could be charged. it's not because we don't have laws that could be used to prosecute journalists that we haven't prosecuted journalists. it's because we have a legal and political norm in this country that says that's a line we don't want to cross without reasons very different from what we're seeing right now. and so by the way, when you ask about what sanctions or controls that are on me, i'm certainly well aware if i were to publish a story that clearly and obviously led to some gigantic security disaster, that could change the legal and political norma cording to which i am not charged with a crime. >> i wrote an op-ed for cnn.com on the investigations and i don't come out quite where bart is and i'm closer than you might think. i thought the prosecution of thomas drake at nsa collapsed of its own weight because it was such overreach. not that he didn't do things that deserve some response from the government but not that and i was quite troubled myself by kind of the scatter shock subpoena on the associated press, and then the identification of rosen as a coconspirator. that's somebody with my background, all right? transparency and how do you make that work? it's very hard. i don't have a good answer. we are going to have to, we, the intelligence community has to be more transparent than it's ever been before, because if we're not, you're not going to let us do this stuff in the first place. all right? there's one caveat. by being more transparent, we will indeed make you more comfortable. it is inevitable that we will also make you less safe. that's the deal. >> let's take two here. >> thank you both so much for coming. both the president and the congress in the usa freedom act and several other bills introduced the concept called the special advocate. this is a privacy and civil liberties advocate which will be placed in the foreign information surveillance court, fisc, in some proposals of this official you would be granted the power to appeal decisions of the fisc court of appeals to federal courts, potentially ending up in the supreme court. i was hoping to get your general thoughts and comments on this position in general, its potential effectiveness and also whether you think the granting of standing was going too far. >> okay, and one more. >> hey guys, thanks for coming. my name is alejandro alvarez, a sophomore in the school of communication and my question for both of you is as follows. former vice president dick cheney spock at our campus. he believed 9/11 could have been prevented if the nsa had the capabilities back then that it has today. do you agree with this statement and why or why not. >> there's been enormous amounts of scholarship on whether 9/11 could have been prevented with today's technology, but it's actually, it's been fairly well established, it certainly was the view of the 9/11 commission that 9/11 could have been prevented with what they had then had they used it as designed, had the coordination between fbi and cia going the way it should have been and so on. that's sort of beyond my qualification to speak. the issue of the fisc advocate also beyond my competence. i've followed a lot of the stories, i've read a lot of fisc opinions and fisa requests in the past. any proceeding before a neutral arbiter is going to be, in the long run, work better and make better decisions if there's a checking power, if there's an advocate. we know that this fisa court blessed, you sort of had a number of big decisions for the first time in history that said certain programs, very large scale programs were lawful when before it only considered individual warrants. we know that the first time that a federal judge considered that program in a contested legal proceeding, the judge found it to be unconstitutional. another one considered it, you know, shortly after and said no, we think it is constitutional but that's the whole point of a contested proceeding tends to bring out the best arguments or the best evidence, so in principle i'd be for that. >> very briefly, no advocate for individualized warrants. we don't do that in the criminal justice system. i'd entertain the arguments for an advocate and the generalized warrants in which an entire program then is blessed by the court because number one, it happens far less frequently, so it's just manageable and number two, it has far-reaching implications and so you might want the benefit of an adversary process there. with regard to 9/11, who asked that question? yes. what vice president cheney was referring to were two guys in san diego, khalid midhar, we at nsa intercepted seven or eight of their phone calls from san diego to a safe house in yemen. clearly the selector or the target was a safehouse in yemen, and we detected the calls going in. there was nothing in the physics of the intercept, like how we were getting them or in the content of the call that told us that these guys are making the call from san diego. so we just have people speaking arabic, calling into a known safehouse in yemen, i think one had a wife who was pregnant and he was continually asking after her welfare. intercepted seven calls, i think we pushed out reports of significant intelligence on two or three, but again, nothing in the physic of the intercept and the content of the call, they're in san diego. with the 215 program, when you go through the transom with the phone number in san diego the phone number in san diego raises its hand and that's what the vice president was referring to and bart's right, there are other ways we could have done better prior to 9/11. you know, saying that you could have done it otherwise, therefore you don't want to do this is like saying all i want to do is win games close. no coach ever has that as a game plan. i'd like to have the additional capacity. >> when you say the number in san diego then would have raised his hands under the 215 program. >> yes. >> because that number was calling other places -- >> because that metadata would have recorded the connection between that u.s. number and the yemenian number. >> okay, so we've got two last questions, one here and then here. >> hello, my name is chris ayers, i'm a sophomore in the school of public affairs and my question is mainly for mr. gellman. you mentioned all the data that you get that you have to protect, make sure you're not only a target from the u.s. but outside countries. what do you do with the data that you consider to be too important to publish but then also, and do you delete that data or do you keep that and do you know what the other main receivers of this data have done? >> yes, go ahead. >> for the final question, thank you very much, both of you for getting very much into the details of this program, but to return more to the normative where we started out talking about, we've talked about how radically data collection has expanded in the last decade, and mr. gellman you pointed us to this intercept between google centers and the bulk data collection. so since data collection has changed so much in the last ten years, should our concept of surveillance and what it means to be surveiled as an american change? so when we're talking about data going from private company to private company where we as americans have literally given up that data to a private company that is not under control of any source as publicity zens, should that still mean the same thing is when the government is surveiling us as individuals and what it means to us changed? >> all right, security. for reasons that i think will be obvious i'm not going to go into all the details, but as a general proposition, what i've done with the benefit of the expertise of some of the world's best people on this, because those have been available, is i've kept the material physically secure, there are physical barriers to where it is. it is on computers that are encrypted with the best monitoring encryption which actually is now something that when you get to actually the frontal attack on encryption, the encryption still stands against any country in the world, and it never touches the network. it's on a computer that never has touched the network. it is, there are other things but i'm not going to go any further than that. i have actually the ironic thing is i've been asking since the very first day, june of last year, have asked the government for a more secure way to communicate with the government when i tell them what i have each time i'm going to write a story. i say i'd like to talk to you about this story. i'll tell you every single fact that i have that i'm contemplating publishing. i want to understand whether it's correct, in the right context, whether you want to tell me anything about the damage that might be done. i've said it's crazy to have this conversation over and over in an open phone line or an e-mail and nine months later they have still not provided me with a secure means of having those conversations, which has, you know, as simple as a key but it's not bureaucratically or legally simple at all for them and so we have these odd conversations about you know, page 17 and a squiggly looking shape on the bottom left and two words that rhyme with each other, i mean, literally, two words that rhyme with each other on the page, so as to avoid putting it all out on an open phone line. there are ways that security could be improved. >> let me just end, let the record show bart retains the data, just like nsa does. >> if you think that's the same, then we have more to talk about afterwards. >> on the last question, really, on the meaning of privacy in a digital age, right, in an age where every time anyone uses easy pass or go shopping or uses google, we're giving all sorts of information to private companies, right, voluntarily, right? so we're comfortable giving away tons of metadata and content of data as everyone who has ever gotten a pop-up ad after they've made an inquiry knows, right? so does this change how we think about these topics at all? >> yes, of course it does. i mean, privacy is the line we continually negotiate between ourselves as unique creatures of god and as social animals. and that line changes, and i think it's rapidly changing now the digital interconnected page. that is a nightmare for security services in a democracy who are sworn to protect reasonable expectations of privacy or the definition of reasonable is a movable feast within the broader culture. >> there are two things going on here sort of legally and conceptually. in terms of privacy. one of the third party doctrine which you mentioned which is to say i voluntarily told verizon who i was calling and i voluntarily transmitted my voice over communications which cross all sorts of other companies. therefore, i have no lawful or moral reason to believe that it's confidential. privacy is relational and situational. i might be happy to tell you something but not all these other guys and certainly not the government or certainly not some company that wants to sell me to an ad network. it's just not the way it works. the third party doctrine began as an analog pencil and paper thing where you robbed a bank and then you made a deposit in another bank and you voluntarily told this other bank you had $300,000 and therefore you waived your right to privacy on that. now you could have kept it under your bed. now the equivalent is i'm going to cut myself off entirely from civilization, because there is no way for us to function in this city or in this society or be employed or be students without using these communication methods, so the idea that if we allow google to know that we're sending a love letter to our love interest, that we're happy to have anybody in the world reading it, that' just preposterous. the other part is reasonable expectation of privacy and it's been interpreted by the u.s. government to mean that once you know that the means exist to be intercepted or overheard, this is one element of it, then you have no reasonable expectation that it won't be happening to you, so if i tell you that we have through the wall thermal imaging then you understand that your sex life in your bedroom is not immune from vans driving around and taking pictures of you through the walls. that technology actually does exist. so you're all warned now. i mean, both of these concepts have been stretched sort of beyond all plausible shape in terms of our intuitions and there's a lot of work being done right now to try to bring that back into reason. >> well, thank you both very much for an illuminating and provocative conversation and we'll continue to surveil your further thoughts on this as they develop, so thank you very much. [ applause ] >> montana has one member of the house of represents and is he leaving the house to run for the senate. in the race to replace him republican ryan zinke and democrat john lewis metaphor their first televised can he bait ov debate over the weekend. >> tell me how you put sanctions against a non-nation state. maybe perhaps we should write a tersely worded letter. our southern border is no longer an immigration issue it's a security and immigration threat, a nation that can build a panama canal in the 19th century certainly can build a fence in the 21st. unfortunately, it's going to call for america to lead. and you cannot control isis by air alone. in the words of general conway, four star, former xhabd commandant of the marine corps, "there isn't a snowball's chance in hell that air operations will work," and i agree. secondly, limit our ground forces to special forces, to supply and support. we make sure our coalitions that we choose are watched and efficiently trained. and limit our involvement but make sure isis is destroyed. >> quick follow-up because no one answered how we are paying for this. we put two wars on the credit card. would you be willing to support a war tax to support as donna said a perpetual war we seem to be in? >> there's two clearly different approaches to this situation here on this issue. i'm saying, we need to be thoughtful and responsible decisions. no, a letter is not going to get the job done. but this is somebody who called for invading mexico a few weeks ago because we have an american in jail in tijuana. that's not the kind of judgment i want representing me in congress. his instant reaction to the president's announcement that we would have air strikes was, let's send in more troops. he also said a couple years ago that when president announced that women should serve in gatt roles in this country, he said that is nearly certain to cost lives, nearly certain, women serving in combat roles. that's not the judgement we need in congress. it's a good question, jake. how much is this going to cost? it needs to be debated in congress and authorized. >> quick rebuttal, ryan, how do we pay for this? >> we pay for it by having a strong economy. a navy costs money. bridges, schools, infrastructure, that all costs money. paying for medicare, social security. we need a robust economy. john, i know you didn't serve. but tiramisu is a marine that has been languishing in a prison in mexico for over six months. every man woman -- and i've served both and i've commanded both. everybody that serves in this country must be sure that america has their back. when america doesn't have their back, like benghazi, like mexico, what happens is, it sends a signal to every veteran fighting, you know what? america is not going to be there. i did not advocate invading mexico. i advocated the president doing his duty in doing by all available means to get the young marine back. >> more campaign 2014 debates on c-span tonight at 7:00 p.m. eastern, pennsylvania's republican governor tom corbett and his democratic challenger tom wolf meet for their final debate, live from pittsburgh at 7:00 p.m. eastern on our companion network c-span. tomorrow live on c-span at 7:30 p.m. eastern a debate from the 17th congressional district of illinois, inchem dunt democratic congresswoman debates bob shilling. pat quinn debates republican challenger bruin browner at 9:00 p.m. eastern on c-span. >> this weekend on the c-span networks, friday night at 9:00 p.m. eastern on c-span, a memorial service for president reagan's press secretary james brady. on saturday night at 9:00 p.m. eastern, former secretary of state colin powell talks about world affairs and sunday evening at 8:00 on q&a author robert timberg talks about how a marine in vietnam a land mine explosion nearly killed him and changed his life and friday night at 8:00 on c-span2, author and activist ralph nader calls for an alliance between parties to take on the issues that plague america, saturday night at 10:00 on book tv's afterward, an author on why he feels medical science should be doing more for the aging and dying and sunday just after 7:00, naomi klein on free market capitalism and its impact on climate change. friday at 8:00 on american history tv on c-span3, curator and director of the cia museum in virginia toni hyley explains the preserving of history and saturday at 8:00 p.m. eastern the king georges war of the 1740s, how it helped the american colonists engage. sunday night at 8:00 p.m. president ford's congressional testimony on the nixon pardon. find our television schedule at c-sp c-span.org, call us at 202-626-3400, e-mail us at comments@c-span.org. join the conversation, like us on facebook, follow us on twitter. "new york times" reporter james ricen was subpoenaed in 2008 to testify at the trial of a former cia officer accused of leaking information on iran's nuclear program. in august, mr. reisen spoke about freedom of the press at an event hosted by the institute for public accuracy. you'll also hear from former talk show host phil donahue. this is about an hour and ten minutes. >> good afternoon, i'm president of the national press club and i'm pleased to welcome everyone on a day that is important to press freedom of this country both regarding the james reisen case and what it happening in ferguson, missouri, where journalists are once again on the front line, courageously trying to cover news developments in the most difficult of circumstances. late last night the national press club issued a statement expressing its deep concern about reports at least two reporters from "the washington post" and "the huffington post" who were covering the unrest in ferguson were manhandled and detained by police officers there before being released, other reports backed up by video show some television crews were hampered by authorities from their professional duties. this is all unacceptable and we urge police and other authorities in ferguson to let the journalists carry out their professional mission to report the news in an unfettered manner, to do otherwise is a violation of the freedom of press enshrined in the first amendment of our bill of rights. also unacceptable very much also unacceptable is a threat of prison being faced by james reisen of the "new york times" bus aof his work as a professional journalist. this morning a petition signed by more than 100,000 persons was delivered to the department of justice declaring "we support james reisen because we support a free press." >> those petitioners include 20 pulitzer prize winners who declared their support for mr. reisen who is refusing to name a source for information about a bungled cia operation in iran that appeared in his 2006 book "state of war." we are pleased and honor james ricen still under threat of prison could be with us today. he was presented with the freedom of press award in 2012 for a career of reporting material the government would prefer to keep from public view to give iran flawed nuclear weapons designs and also honored for resisting government attempts to get him to reveal his confidential sources. i am proud that the national press club through its active freedom of the press committee under the leadership of john donnelly continued to support mr. ricen as well as today's petition. i would like to introduce norman solomon, and executive director of the institute for public accuracy. he's author of a dozen books on media and public policy and recipient of the ruben salazar journalism award and george orwell award. he coordinated the petition campaign in support of james ricen. mr. solomon? [ applause ] >> thanks. >> here we are and it's fitting because it was 60 years ago that perhaps his most well-known and well remembered tv broadcast edward r. murrow said we cannot defend freedom aboard by deserting it at home. he said that at a time when journalists stepped forward to lance, boil, fear and intimidation that gripped official washington for years and the entire country as well. that was 1954. here we are in 2014 and the events today are part of i think a very strongly accelerating effort across this country to lance a boil of fear and intimidation. we don't talk anymore so much about a chilling effect, we talk about a freezing effect, we talk about ice cubes that congeal, we talk quite properly and accurately about an obama administration that seems determined to gut the meaning of the first amendment. as the petition that we presented this morning to the department of justice spells out, it's really the functionality of the first amendment that matters. it's a brief petition that i would like to read the entire brief text to you. to president obama and attorney general holder. your effort to compel "new york times" reporter james risen to reveal his sources is an assault on freedom of the press. without confidentiality, journalism would be reduced to official stories, the situation antithetical to the first amendment. we urge you in the strongest terms to halt all legal action against mr. risen and to safeguard the freedom of journalists to maintain the confidentiality of their sources. well, as myron mentioned and it was 14 on monday, statements released on that day by pulitzer prize winners, since then there have been six more who have approached us to add their individual statements, all of them are posted at roots action.org where people can also find a way to sign on to petition, which is ongoing and let me briefly emphasize that the names on the petition we dropped off and that are on screen, they're not just names, they're an activist network. we know how to reach them, we do reach them, we have everybody's e-mail addresses, and we're just getting started here. it's all about organizing at this point, in terms of mobilizing the kind of social understanding and a political pressure that's to be necessary to turn around what is truly a deteriorating, dreadful situation. the many organizations involved are only part represented here and folks that we're going to hear from today are speaking for just one of the or a few of the many groups that are involved. and i want to emphasize really that we're embarked now on something that might be unprecedented, a collision between an administration that talks good and does bad, and a mobilized citizenry that increasingly understands what's at stake. today really marks the culmination of one phase of that growing effort and theish in nation of the next. so we're going to move ahead now with the news conference, another part of this effort to lance that boil of fear and intimidation that's been doing so much damage to journalism and to democracy in our country. i would like to now introduce greg leslie. he is legal defense at the reporters committee for freedom of the press. he's been an attorney with reporters committee since 1994 and served as a legal defense director since 2000. he supervisors the journalism hotline services. he served a lot of positions, i'll just mention a couple. member of the american bar association's fair trail and free press task force and many other positions. before and during law school he worked as a journalist and research director for a washington business and political magazine and here he is, greg leslie. [ applause ] >> well, thank you, and i'm happy to be here to support james ricen and encourage him. at the reporters committee, we have been actively involved in the case from the start and we have been working with the department on reform of its own guidelines regarding media subpoenas, and while that certainly can feel like a sisifian task, it nonetheless is critical to engage the government on these issues, even incremental progress is something, but -- must be addressed by enactment of a meaningful shield law that recognizes that reporters need to be independent of the judicial system. not because they're above the law, or because they want to avoid the burden of participating in the legal system, but because journalists need that independence to truly help hold the government accountable to the people. the reporters committee was founded in 1970 over this very issue, the threats to reporters from subpoenas that led to the brandsberg b. hastes case and the need for a federal law. there were over 100 journalist shield bills introduced in congress. the effort was taken up in earnest after the valerie plame incident in which "new york times" reporter judith miller spent 85 days in jail for refusing to disclose her confidential sources. those shield law efforts that started then are ongoing. it takes a while to get these things through congress. in 2007, the house overwhelmingly approved a shield bill. and when that didn't pass through the senate in 2009, a similar bill passed on a voice vote under a suspension of the rules, meaning it was so noncontroversial that a role call vote wasn't even needed. the senate hasn't passed such a bill yet, but in 2009, the judiciary committee did send a bill to the floor. it failed to win a place on the calendar as debate on something called obamacare suddenly took over the agenda, that kind of sidetracked things for a while. but the latest attempt to pass the journalist shield bill came after last summer's disclosure after a massive subpoena of the associated press's phone records to track down the leak about a cia operation in yemen and the revelation that the department of justice had successfully obtained a search warrant of a fox news reporter's g-mail account by telling the court in order to get the search war rangt that he was involved in the crime, either as an aider, abetter, and/or coconspirator, end quote, the government came out to say, a reporter asking a government employee for information was guilty of aiding, abetting, or co-conspiring within an espionage charge. so when the action against ap and fox news came to light, president obama ordered attorney general holder to review policies of subpoenas of journalist's work. and a policy statement was released as a report to the president in july of last year. while the media representatives involved in that process fought for provisions that would make such efforts more difficult for prosecutors and at least lead to greater notifications to journalists before their third party records were subpoenaed, we knew at the same time that of course the department of justice was saying that it fully intended to subpoena reporters in the future if they really needed the evidence to prosecute a leaker. the ap and fox news incidents also propertied more congressional action on the shield bill, and a bill was approved by the senate judiciary committee last september, so almost a year ago now. although it still awaits senate floor action. the house hasn't taken up the legislation at all yet this year and of course the current makeup of the house is not quite the same as it was in 2009, so we don't know what will happen there. but the fight over the right to keep journalists' sources confidential is literally older than the public. printer refused to disclose the authors of a tax against the colonial governor of new york in 1734 and thus was himself charged with is asad ishs libel. a century later in 1848, news of the treaty of guadalupe hidalgo ending the mexican-american war was first reported to the american people after a newspaper reporter, john nugent of the "new york herald" was told of the still secret terms. nugent spent a month basically under house arrest in the capitol. 50 years after that in 1896, john morris, a "baltimore sun" reporter, reported that a number of elected officials were taking payoffs from gaming sources. when he refused to name his source before the grand jury, he was in prison until the grand jury's term expired. the significance of this case is that this jailing prompted baltimore journalists to push for the then unheard of legislation that would protect them from having to reveal sources identities in court, a reporter's privilege, much like the spousal privilege or the doctor-patient privilege. the statute has been amended a few times but the state has never felt the need to rescind the protection. in the centuries since then we now see 38 states and the district of columbia enact such shield laws. it is those state shield laws that provide the real protections to journalists as right at the federal level is weaker than ever. thanks to the state efforts, we know that shield laws work. now more than ever it is time to demand that congress pass a meaningful shield law. congress must act now and acknowledge that the government's accountability to the people comes primarily through independent watch dogs, including not just journalists but whistleblowers as well. one of the greatest things those in powers can do is enact limits on their own powers, and congress must take that bold step now. thank you. [ applause ] >> next speaker is ahmed ghappour, he's professor at uc hastings law where he directs the liberty security and technology clinic. his case work addresses constitutional issues that result in espionage around counterterrorism prosecutions. ahmed was lead counsel in the first criminal case to challenge bulk metal data collection after the snowden disclosures and he currently represents journalist barrett brown. formally he taught at the national security clinic at the university of texas school of law and he was a staff attorney at -- where he represents -- where he represented guantanamo reque detainees in their habeas corpus proceedings. [ applause ] >> good afternoon. it's really an honor to be here today, not only because i admire mr. risen's journalism but because what brings us together transcends mr. risen, it transcends the freedom of the press foundation it transcends the roster of supports who have spoken and written in encouragement. what brings us together today is first amendment of the united states constitution and specifically the portion of that amendment guaranteeing the freedom of the press without persecution or unnecessary prosecution. it was thomas jefferson that once claimed that a democracy cannot be both ignorant and free and the framers of the constitution believed that if u.s. citizens failed to take good care to share information completely amongst themselves, they would be worse off than they had been as subjects of the british monarchy. to that end the first amendment recognizes that freedom is not just a luxury but a necessity. in order for a democratic form of government to function and continue to exist, the people must be informed. a simple mantra for a great nation and indeed the development of our free society is the result of the public debate and disclosure that journalists like james risen provide and the core of our free society is the press. and forgotten amidst a particular reporter's public persona or front page scoops is the crux of their profession, and that is news gathering. at the heart of our freedoms and the freedom to publish the news is the freedom to gather the news. and as justice sutherland wrote in 1936, the newspapers, magazines and other journals, this country it is safe say has shed and continues to shed more light on the nation than any other instrumentality of publicly and since informed public opinion is the most poe tent of all restraints upon this government, the suppression or abridgement of the publicity afforded by a free press the conbe regarded otherwise without brave concern. so it is with grave concern that we gather today to confront a real threat to our nation's security. for who are we if we are not secure in our ability to hold the government accountable? now of course these freedoms are not without limitation, but to be clear, mr. risen broke no law gathering the news. he broke no law in proliferating the news and publishing his articles and books. nor can the justice department make such claims. indeed, there is no law that mandates a press to obtain government approval about lawfully acquired information. there is no dispute that such a law would be unconstitutional on its face as a prior restraint of speech and would threaten to transform this great country from being a democracy to becoming a totetalitarian state. yet mr. risen delayed publication for years out of an abundance of caution until it was clear to him that the government's desire to sensor him was not a matter of national security, rather it was a matter of national embarrassment. to be clear, the government does not seek to compel information from mr. risen to put an end to an existing threat to stop a terrorist attack or even an existing crime, an ongoing crime. the government seeks information ordered to investigate an alleged leak that occurred years ago by someone else. and quite frankly, i am puzzled as to why the doj needs to use mr. risen to make their case for them. you would think with all the resources expended on federal law enforcement, the fate of our nation would not rise and fall at the feet of a 59-year-old reporter revealing his sources. and i'm sorry to give away your age. by initiating and executing investigations that monitor e-mails, phone calls and even credit reports of journalists, the government has made it clear that it does not fear the chilling effects to our free press and does not value the dogged investigative reporting that has contributed not only to our great democracy, but to the history of mankind. either way you look at it, mr. risen and indeed all journalists are faced with a hobson's choice, either to practice a form of journalism consistent with the first amendment and risk prison or potentially bankruptcy, or practice a form of journalism that the executive wants them to. to release only information that the executive permits them to and to tell people only those facts which the executive deems fit for public consumption. mr. risen as chosen the past consistent with the first amendment and it's not likely that many will follow in his footsteps. in the end, it's the american people that have paid and will continue to pay the price. thank you. >> our next speaker is jesselyn radack, from the government accountability project which we also known as g.a.p. which is the nation's leading whistle blower organization, it focuses specifically on secrecy, surveillance, torture and discrimination. she's been defending against the government's unprecedented war on whistleblowers which of course has also hit journalists very hard. among her clients, she represents seven national security and intelligence community employees who have been investigated, charged or prosecuted under the espionage act for allegedly mishanding classified information including edward snowden, thomas drake and previously she served on the d.c. bar legal ethics committee and worked at the u.s. justice department for seven years, first as a trial attorney and later as a legal ethics adviser. jesselyn radack. [ applause ] >> good afternoon. anyone who doubts that the war on whistleblowers is a backdoor war on journalists should study the case of jim risen. threats to reporters are the undercurrent in the obama administration's record setting espionage act prosecution of so-called leakers. one example where the press is implicated is when the justice department subpoenaed associated reporters phone records impacting over 100 different journalists. in the case of another whistleblower, steven kim, the justice department got a search warrant on the reporter, jim rosen, by claiming that he was a, quote, co-conspirator. in the case of my client edward snowden, the administration has made noises about reporter glen greenwald being an aider and abetter. considering the obama administration's use of the espionage act to kill speech, it should be no surprise that threats against risen also come from an espionage act prosecution of another whistleblower, jeff sterling, and risen's honorable commitment to protect a source on the disaster government operation gone wrong. whistleblowers need the press. there are no safe and effective internal channels for most national security and intelligence whistleblowers. channels that do exist often turn whistleblowers into targets of retaliation and rarely correct the underlying wrongdoing, especially when the wrongdoing is perpetrated by senior levels of the u.s. government. the press, i would submit, also needs whistleblowers. journalists depend on whistleblowers for information in the public interest. without whistleblowers, journalists would struggle to unpack government and corporate spin without differing perspectives or in many cases documentary evidence. as a whistleblower attorney, there are a small but essential handful of reporters i feel confident will accurately report information and protect their sources. jim risen is one of them. and if he is jailed, or forced to pay harsh daily fines, the pool of reporters who know whistleblowers are essential for accurate reporting will become even smaller. the threats to jim risen are an attack on the entire first amendment. most prominently, the right to a free press, but also the right to speak and associate with whistleblowers and reporters. government surveillance of reporters, subpoenaing of reporters to testify against their own sources, and threatening them with contempt of court create a freezing atmosphere where neither whistleblowers nor reporters are safe to hold the government accountable and keep the public informed. committing journalism is not a crime. the notion that it is, is a dangerous trend we should deprive of oxygen. it demands that the government withdraw the subpoena of reporter jim risen immediately. thank you. >> our next speaker courtney radsh is a journalist, researcher and free expression advocate who writes and speaks often on the intersection of media and technology and human rights with an emphasis on the middle east. she's advocacy director currently at the committee to protect journalists, where she's leading the right to report in the digital age campaign aimed at ending surveillance and harassment of journalists. prior to joining cpj, she was at unesco where she created the freedom of expression strategy in the arab region. dr. radsh also previously managed the global freedom of expression campaign at freedom house. and she's also worked for al arabiya, the daily star in lebanon and also the "new york times." courtney radsh. [ applause ] >> thank you. the committee to protect journalists is seriously concerned about the actions taken by the department of justice and the ongoing efforts to subpoena jim, which could have a chilling effect on the u.s. media and journalists if it has not indeed already has that impact. cpj was founded in 1981 by a group of u.s. correspondents who realized they could not ignore the plight of colleagues abroad whose reporting put them at risk on a daily basis. since then cpj has promoted press freedom worldwide and defended the rights of journalists to report the news without fear of reprisal. last year we decided that the crackdown on leak investigations and revelations about the extent of surveillance in a post-9/11 world necessitated us to look inward and weigh in on the threats to press freedom in the united states and this is why we are here today in support of jim. as a former colleague of jim's at the "new york times," i'm also personally happy to be here in solidarity with his efforts to protect his confidential sources and the integrity of the journalistic practice. the obama administration has pursued eight prosecutions of leakers under the espionage act. that's more than twice the total number of such prosecutions since the law was enacted than any other administration all combined and the subpoena requiring jim's testimony as part of the broader crackdown on leaks and whistleblowers as you've heard, a cpj special report published last october concluded that the obama administration's revelations about broad surveillance programs and moves to stem the routine disclosure of information to the press shows that the president has fallen far short of his campaign promise to head the most open government in u.s. history. several journalists interviewed for the report told cpj that leak investigations and surveillance revelations had made government sources fearful to talk about sensitive information, and prosecutions such as those of jim have had a roh foundly detrimental impact on the practice of journalism and as you heard on the first amendment. publicly speculating about bringing charges of espionage or prosecutions more generally of journalists for doing their job serves to intimidate not only the individual journalist, but journalistsmore broadly. journalists more broadly, and has a serious chilling effect on the press. this is likely to be even stronger among journalists who do not have the backing and protection of a major media organization with legal resources, charges about resources. revelations about targeting of surveillance and hacking of journalists at media outlets is also problematic. you heard those described earlier. and having read jim's affidavit explaining why he cannot testify and detailing the extent of government harassment and surveillance of his electronic communications, it is clear that if he is forced to testify, he would likely put at risk the confidentiality of his source. furthermore, these type of aggressive prosecutions send a dangerous signal to governments elsewhere that would seek to use national security and anti-state charges as a cover for clamping down on journalists and press freedom. according to cpj research, nearly 60% of imprisoned journalists worldwide are imprisoned on anti-state charges, such as subversion or terrorism. that is far higher than any other type of charge such as defamation or insult, and it is a favorite of repressive regimes who see little value in a free press. furthermore, undermining the principle of source protection and the idea that journalists like doctors and others have the right to keep sources confidential has implications for the robust practice of journalism. indeed in 2012, the justice department argued that reporters privilege should not apply in national security cases and compared journalists to someone receiving drugs from a dealer. preventing journalists from being able to promise confidentiality to their sources undermines the key aspect of journalism that is central to so much reporting on issues that are central to the public interests like national security, like anti-terrorism and are central to holding government accountable and to the democratic process. the u.s. government's ongoing legal pursuit of jim sends a terrifying message to the 124 journalists jailed worldwide on anti-state charges and detracts from its normative moral power abroad. i don't think that the united states wants to join cuba in becoming the only other country in the western hemisphere to have an imprisoned journalist. and that's what's at risk here. it is much harder for the u.s. to be taken seriously when it advocates for press freedom and journalistic rights abroad when they are abridged at home. governments have many obligations, to enforce the law, to protect citizens, to prevent attacks, but they also have an obligation toup hold the skongs obligation to uphold the society upon which it's built and to ensure the principles upon which this society is built and to ensure the functioning of the democratic process in which the press plays a central role. the committee to protect journalists calls on the united states department of justice to withdraw a subpoena seeking to force journalists james risen to give testimony that would reveal a confidential source. [ applause ] >> our next speaker, delphi delphine halgad has worked as the director of the washington office for reporters without borders since 2011. she runs the u.s. activities for the organization and advocates for journalists, bloggers and media rights worldwide. acting as reporters without borders spokesperson in the u.s., she appears regularly in american and overseas media, and she lectures at conferences at u.s. universities about press freedom violation issues. she previously served as press atta attache at the french embassy in the united states. she's working as an economic correspondent for a range of french media focusing mainly on macroeconomic issues. dehine halgand. [ applause ] >> thank you, norman, thank you to root action for all the work you did to put this mobilization coming together and thank you to all of you for being here today. i will be short as a lot has already been said and i'm as looking forward as you are to hearing jim risen. so the united states is ranked at the 46th position in the reporters without borders 2014 word press freedom index. the word press freedom index that reporters without borders has published every year since 2002 measure the level of freedom of information in 180 countries, it reflects the degree of freedom that journalists, news organizations and bloggers enjoy in each jou organization and bloggers enjoy in each country. one explanation for the united states to be around the 46th position, the whistleblower is the enemy. eight alleged whistleblowers have been -- which is the highest number. there is no true freedom of information, no true freedom of the press without protection of journalist sources. leaks are the live blood of investigative journalists. given that narrowly all information related to national security is classified in this country. it is then safe to say that this crackdown against whistleblower is designed to restrict all but officially approved version of events. this highlights the need in the u.s. which could protect journalist sources at the federal level. for the moments, the senate project supported by the baum administration still has major flaws. remain the year of the scandal, the department of justice that it has seized the news agency phone records. 2013 will be remembered as the year where the whistleblower was condemned to 35 years in prison. 2013 will also be remembered for the revolution of edward snowden who exposed the nsa surveillance. and will 2014 be remembered as the year when he was sent to jail for doing his job? i hope not. and we hope not. reporters without borders is deeply worried by the continuing efforts taken by the department of justice to force to testify against his confidential source. and reporters without borders calls to halt all legal action. reporters without borders is the largest press freedom organization in the world. with almost 30 years of experience. thanks to its unique global network of 150 correspondents investigative in 130 countries, 12 national offices and at the u.n., reporters without borders is able to have a global impact by gathering and providing on the ground intelligence and defending and assisting news providers all around the world. and today, we are here to defend, to defend the first amendment. freedom of the press is the most important freedom. the freedom to all of us to verify the existence of all other freedom. thank you. >> i should mention that this news conference is being hosted by rootsaction.org and co-hosted by the information accuracy. there are more than a dozen organizations with logos on the petition that's online. i hope you'll take a look at that constellation of groups and get in touch with them and you can, again, look at that petition at rootsaction.org. our next speaker pioneered the audience participation talk format on television as hosted of the donahue show for 29 years. phil donahue has 20 emmy awards, nine as hosts and 11 for the show. as well as the peabody award, as well as the president's award from the national women's political caucus and the media person of the year award from the gay and lesbian alliance. world leaders and news makers. there's so much to say, and i'll be very brief. but i certainly personally vividly remember as millions of people do how in 1985, he introduced the satellite space bridge telecast between the united states and the soviet union in the midst of a lot of the very cold part of the cold war. and then brought his talk show to russia for a week of television broadcasts. phil donahue was the first western journalist to visit after the nuclear power accident there. in 2006, phil coproduced and codirected the documentary "body of war" the very powerful journalistic cinematic focus on one young iraq war veteran left in a wheelchair by enemy fire. and the parallel process of machinations on capitol hill. phil donahue. nations on capitol hill. phil donahue. >> thank you, norman and congratulations for assembling this very important event. i was a journalist, i was a journalist first for wabj in adrian, michigan, the proverbial 250 watt radio station. and i wondered what ever happened to wabj, so i googled, wabj and there it was, the washington association of black journalists. wabj is gone now, but it's a place where i learned a lot about journalism. i was 21 years old, i must have looked 12. i had a tape recorder with literally vacuum tubes. and i could stop the mayor in his tracks. i covered city hall, i covered the first -- my first murder. i played ball with the cops so i would cultivate my sources. and i began to really understand what noble, noble pursuit journalism is. and now, here i am at the press club with a lot of the people who are really -- if they were all men, they'd be the sons my mother wanted to have. i am very flattered to have norman ask me to make an introduction of james. and i have monitored my talk show meter now, which he's saying all right, all right now, get off, get off. by i asked the patience of the good people at the press club for this just one observation. every major metropolitan newspaper in this country supported the invasion of iraq. jonathan lande are exceptions, but their own papers didn't. many of their own papers didn't publish their work. they're saying, wait a minute, where's the evidence? wmd? where? this is what you get with corporate media. when i was a reporter in adrian, michigan, i didn't have to take a test. i just said i was a reporter. and i was. i didn't have to pee in a bottle. all you had to do was get out there. that's the way we want it. that way you have more people getting the news. that way it's more likely that somewhere in the collective middle of this large crowd will be found the truth. today, that collective middle is occupied by five multinational companies much more interested in the price of their stock than they are in funding investigative journalists, which, by the way -- who by the way are not necessarily cost effective, as we know. investigative journalism can lead you down a rabbit hole with nothing to publish when you're finished. and that makes what james risen has done all the more important. at a time when a journal -- mainstream media has a lot on its mind and a lot to be ashamed of. the president said during the iraq build-up, you can't take pictures of the coffin. and the whole media said, okay. we aren't biting back. and if we ever needed to bite back, it's now. with the bill of rights being eroded, a fundamental values of our founders. we have no habeas. we have people in cages 15 years, no nothing, no phone calls, red cross, you know, miranda, schmiranda, don't make me laugh. and the american people are standing mute. and how much bite than bark have we heard? from our media as the bill of rights and the fundamentals of this nation are eroding before our very eyes. into this environment comes james. we think we should put him on a pedestal and eric holder and apparently the president believe he should be put in jail. what's wrong with this picture? and as for that reason we assemble here today hoping that the 20 pulitzer prize winners who have lent their names to this will be joined by thousands and thousands of other americans who agree that we've sent thousands and thousands of thousands of people to die for the right of a free press and james risen is one of the people who took advantage of that right, who doesn't want it to die. as we stand here mute as people in power don't want to be embarrassed and begin to listen on your phone and mine. now is the time for more of the kind of journalism that james risen is doing. and it's for that reason i have this once in a lifetime opportunity. a great american, a patriot james risen. >> wow. i don't know if i can live up to that

Transcripts For CSPAN Key Capitol Hill Hearings 20140415

off near the finish line of the race. at 8:00 eastern, a discussion with journalists who won the pulitzer prize for their coverage. members of congress, it is my great privilege and high honor and personal pleasure to present , hamadhis excellency karzai, resident to the islamic state of afghanistan. -- president to the islamic state of afghanistan. [applause] >> thank you. thank you. thank you very much. thanks a lot. please. thank you for the great honor. speaker, mr. vice president, members of congress, distinguished guests, the great people of the united states of honora, it is my distinct to speak on behalf of the afghan people in this assembly. i think you and the people of this great country for your generosity and commitment to our people. you have supported us with your resources, with your leadership in the world's community. with theimportantly precious lives of your shoulders -- of your soldiers. quick find more highlights from 35 years of house coverage. c-span, created by america's cable companies 35 years ago and brought to you today as a public service by your local cable or satellite provider. >> the washington post and guardian newspapers won a pulitzer prize for their coverage of nsa intelligence and surveillance. former director michael hayden recently joined washington post -- rter this two-hour event was hosted by american university here in washington dc. privileged toly have two people who know the nsa extremely well from different perspectives. is aal michael hayden retired four-star general who served as the director of the many other, among electors opponents in his 40 year career of public service. he was appointed director of the nsa by president bill clinton and serve to 1999 2005. in 1990 92 2000 five. he served as the first deputy director of national intelligence, the highest-ranking intelligence officer in the armed forces. in may 20 -- in may 2006, george w. bush appointed him as director of the cia. he is a frequent commentator in many major news outlet. principal andy a a distinguished visiting professor at george mason university. gelman spent 21 years on the staff of the washington post. he has won numerous awards. was awardedlitzer in 2002 for reporting on the september 11 attacks. the second was awarded to him in 2008 4 his series on dick cheney's vice president see that a best-selling book. that book won the los angeles times book prize and was named a new york times best book in 2008. today he is a senior fellow at the century foundation and author and residence at root -- at woodrow wilson school. he returned temporarily and 2013 after receiving various nsa documents from edward snowden. with his colleagues he has broken stories about many of the things that we are bound to be discussing tonight. i would like you to join me in welcoming our distinguished speakers and the national audience of c-span. [applause] the format as we are going to have conversation among ourselves for the first hour and then we will open it up to you all. i see two microphones, one on the middle and one on the side here. it seems to me all of the rotatental questions around balancing security and privacy. it? there is do the further question of what privacy even means in the digital age. people are keeping track of you every time you are using an e-mail. to make an informed judgment about the nsa programs, we have to know what they are. i want to spend a lot of time talking about what those particular programs are. we are hosting a political theory institute. asking like to start by if you big questions, around which all the others will revolve. i will ask my first question to will haveu now so you a few seconds to think while i am asking the other. first, what right do you have to turn that tots, to determine to be such? supplantingjustify your own judgment for that of the people's government. hayden there is a parallel question. nsa or any to the other governmental body have to keep secrets in the first place? democracy is based on consent. if we don't know what you are doing, doesn't that necessarily undermine democracy? >> i will give an answer that starts with a profit -- with the provision that my history and politics rates are no longer subject to change. i will give a theoretical or structural answer to that question. with the structure of self-governance in a democracy. if the government is working for us it is usually thought to have two elements, authorization and accountability. we authorize it in elections and say you get to be in charge for a while and then we hold them accountable for their performance, not only in the purpose of reelection but throughout a constant civil society, political conversation. people get their say through a variety of mechanisms between elections. to me the personal conflicts may not be between privacy and security. to me it is between self-government and -- both of which are core values. by thee both touched on time you get through the preamble of our constitution. the first words are "we the people." you have this conflict, which is to say we have secrets that are important to keep for the purposes of protecting ourselves. information is essential to govern ourselves. the model i have in mind is nobody gets to maximize one interest or the other. it has to be balanced. cleaner and neater if you had a theoretical model in which there was some trustworthy print will balance. but there is not. i am notelected, accountable to the people for decisions i make. that foro the case everyone working for him they are not competent to decide what we need to know in order to hold them accountable. we know information is power. the power to obscure the information is a great power, especially when combined with surveillance. what it sets up is a one-way mirror. we become more and more transparent to our government and they become more and more opaque to us. for some of us -- somewhat unsatisfactory answer we are you will a few other possibilities, is there's going to be a process of competition in which governments try to keep secrets, sometimes for good reasons and sometimes for not. there are all kinds of things that are stamped with secrets that are to be. the idea is government keep secrets and we try to find amount. you can imagine the society. the security or the entrenchment of the state authority, against all other interests. when i was a tourist in the soviet union in 1984 i found out i was getting lost all the time wondering the streets of moscow. he took a wrong turn but it is not rational to say we're on the publish inaccurate maps. all information is useful to the enemy. we will pay no price and bear no burden. accept somered to risk in order to govern ourselves. i will close here. documents, aile of 100 year storm. i now know secrets i am not supposed to know. there is a more cooperative process. every other journalist covering this stuff withholds a great .eal of what they know >> three agree an awful lot on this question. most important agreement is a conflict of values. this is the same three people that these people have to balance all the time. of where that line is to -- line is is dependent on the totality of the situation in which we find ourselves. when my public affairs officer or someone else would be aware we felteone had a story really problematic. since they had already worked with the reporter i would genuinely call the editor. my secretary would make the call. the editor would take the call from the director of the cia. i really want to thank you for taking the call. invariably i would then begin the conversation with, look, we both have responsibilities for the welfare and safety of this republic. but how you are about to exercise your responsibilities are going to make it much harder for me to exercise mine. we do really need to talk. we would have that dialogue that barth suggests. he has got to have freedom of the press. on the other hand the government has legitimate secrets. no fooling things are over classified and human beings and government. it also digests -- they are performing inherently without the acts system of checks and balances and responsibilities that normally go over here on this side of the equation. this is getting much much more complicated in the society. how do you hold a government accountable without a great deal of transparency? let me walk you through the arc of american history. there are other secrets. the intelligence community is not the only one that keeps secrets. the federal reserve, they keep secrets. organizationst of of government where the general welfare has improved. at the beginning of the republic and in most western democracies and in many walks -- many western democracies still, this espionage thing is contained in the executive branch. george washington was the nation's first spymaster. when he became president he insisted on a secret covert action budget. espionage has generally been viewed as being a province of the executive. the way espionage changed the policy is change the executive. there was a broad agreement that having this oversight only within the executive branch was insufficient. compromise was to create two bodies in congress in a rather unusual court to spread this transparency and accountability over all three branches of government. we end up with a house permanent select committee and end up with the fisa court. was aeory was that that sufficient transparency to legitimately get consent of the governed. -- consent of the governed and a representative democracy. this isn't ancient athens. that consent was adequate. , people at the nsa are going to say wait a minute, it has been authorized by two presidents, the congress --uthorized it did reauthorized it. that is the trifecta, i have all three branches of government. the great swing in american popular culture -- and i am not just talking out here in the wings, i mean sustained among that no longer constitutes sufficient consent of the governed. you told the mall but you didn't tell me. cost --ind of act that kind of act that cusp. i had a wonderful team of outside civilians. gave the subcommittee a tough job. one subcommittee was doing i.t., the other was suing the car that doing recruiting. -- the other was doing recruiting. they studied for four months and cambe back and gave me a heartily, i'm not sure. which is a very telling answer. here we are with an international enterprise that i am going to assume we all legitimate and necessary. that is why this is so difficult for all of us. >> general hayden described this as an inherently governmental function. when you get that information, i guess there is no checks on you -- or are there? what is the process you go determining, this fella my lap, should i make it public or not? >> are there checks? on the the same checks de facto checks are not so different than they are on the government itself, which is to say that lots of what the government does or doesn't do isn't because it literally doesn't have the power, according to some legal interpretation, but because it believes there would be a grave public consequence, public opinion would not support that. the washington post cares a bit about its reputation for telling the truth and telling it responsibly. nobody wants to be responsible for some terrible thing happening. thee publish story x and in next day there are 10 people strung up in the square of some foreign country because we disclosed their identities, that would be a bad thing for the washington post. it's your checks there. him >> for any of the nsa stories, are you aware of any bad consequences? a it of a conundrum here. a secret has spilled and the washington post has published something and suppose you are inside the intelligence community and you know specifically what some consequence was. they are constrained from telling you about it. hand there are consequences we would know about. he used language quite different than what he uses in public. study.nt back and did a over the years there have been breaches of secrets lots of times, usually in the context of espionage cases but sometimes in the context of a new story or foreign services disclosing something or sometimes the president's close secrets because they have a good political reason to do so. one old reagan played a recording -- recorded a recording of a conversation that took place in libya in order to persuade european allies to allow your -- to allow american planes to fly over their airspace. he reveals that capability. they do a study. what is the damage assessment? the closed-door meeting was these damage assessments consistently overestimate damage. natural or abnormal for the nsa to gain and lose capabilities. stop working tomorrow because microsoft changes their architecture with the other country chooses a different vendor or the target gets tired of that in switches to a different company. targets are trying to practice community and security so they switch. the other thing the clapper said people will change their behavior but they will make mistakes and we will exploit them. the nsa is not in immediate danger of losing its global preeminence in signals intelligence. i concede that it is possible that some of the stories published by some of the news have degradedwill the ability to listen in on something. say thatared to prepared to accept that. we are finding out things that they have been doing that are completely contrary with the public understanding of what their job is and how they do it. if there is a program going on and the executive branch has left it -- have blessed it. when it becomes public the american people are shocked by its and they need people are angry about it and they start telling members of congress and members of congress start introducing bills to stop it. gets brought to federal court in the first federal judge to assess its constitutionality says it is orwellian and likely i will stoponal, there. know you are not in government now. are you aware of specific negative consequences from any of the nsa stories? >> three tiers of consequences, all of them damaging. are you being briefed? >> i can speak freely at events like this. >> i would have shown someone else. >> i know how to read a newspaper. >> three tiers of damage, one is operational. if i were in government, let me rephrase the act -- rephrase the question you just asked me, which give me a list of communication to didn't intercept yesterday? that is really the question you want me to give the answer to. i don't know. the signals intelligence game is constantly moving. all advantage is transient. next whatever,he you don't have a penetration anymore. level ofbuys the next encryption, you don't have the frequency and more. those communication paths have a smarter way to spend a buck. all intelligence is transit. simply accelerated the rate at which we lose our current accesses. to me that is inarguable. is one level. will be recovered? sure. how much? eight to 10 billion -- $8 billion to $10 billion. the second level of loss -- let me stick with that trayvon. -- with that for a minute. they had done more than informed the national debate, they have to 15, and this was ot parts work -- not bart's work -- that was pushed out the door with an incredibly detailed coverage of the front end. ionly -- only over a period of several weeks did the backend story get out to the public domain. people would make the argument that you disagree, even after you got the backend story that you really can't make an informed judgment until you get the whole context. a recent poll said over 30% of think the 215 program allows nsa to listen to the content of your phone calls. second loss is in relationship to foreign governments. not talking about angela merkel being really upset. i am talking about angela merkel's spy service or any other intelligence service around the world to whom we would go to for help in a matter of great sensitivity and a matter that would require great discretion, in which we say this is lawful, a little politically edgy, but it is the right thing to do for both our countries. come on, let's cooperate. we can keep a secret. there isn't another intelligence service in the world i should take that last sentence to the bank. fundamentally been eroded by foreign intelligence services having no faith in our ability to keep things where they ought to be. the third level of damage has to do with american industry, who has been unfairly pilloried by this whole thing. you have young mr. zuckerberg calling the president and complaining about how his company is being treated in the global digital domain. american companies do nothing more for the united states than other countries do for their sovereigns around the world. microsoft, at&t, etc., do the same thing that deutsche telekom does for german security services, etc., etc. but it's only american information that has been put out there, it has been put out there in a way that suggests, almost declares, that only the americans are doing this. i would suggest to you that practically the entire continent of europe, including their elected representatives, now know more about american signals intelligence than they do about their own countries signals intelligence. and that's not a balanced discussion. >> there are lots of things that america might want to be for global preeminence on, but i don't think one of them is going to be that we are the most closed government and we are the best at keeping secrets. and we don't need it, because our security, we actually have a little bit of room, the luxury of allowing democrat debate over -- allowing democratic debate over big questions like -- should the nsa be collecting all of the records of all the calls that you and i make, are taking -- or taking it out of the context of section 215, court authorize telephone program, what do we think about something that is new that the nsa never did in its history on anything remotely like this scale, because the capabilities did not exist? the nsa now wants and has taken many steps to achieve a kind of comprehensive situational awareness of the world. it wants to be able to collect every electron and photon that passes over communications channels in case they might be needed. it is not just metadata, although i think that is enormously important for privacy. it's also what they do overseas. the debate has been channeled somewhat deliberately in the current political context for the statutory kinds of surveillance. that is to say under section 215 act andisa amendments under section 215 of the patriot act, they collect all your call records. overseas they are not bound by statute, supervised at all by the intelligence community or supervise by any court including the intelligence court. they operate solely under the authority of a presidential executive order. since we had a little bit of a historical suite before about the 1970's, that me give you an -- let me give you an additional point of view on that. the 1970's, after a bunch of gross abuses that today's programs don't at all resemble, there was a deliberate misuse of surveillance for domestic, political, corrupt purposes. they created the structure of oversight in the foreign intelligence surveillance act. the idea was you can do what you like overseas, spy on the foreigners, but you cannot do it at home. the restriction was on spying on u.s. persons, citizens, and green cardholders, and actually u.s. companies as well. and you cannot do it from u.s. territories. so around the time that general hayden became nsa director, the u.s. government started making the argument and executive started making the argument to congress, you need to change this because the structure of global telecommunications has changed fundamentally. there's now lots of foreign traffic that passes through the united states. it's not american phone calls or e-mails. it is just the nature of the distributed networks that you could be in germany and calling brazil and the call passes and transits through the united states, for example. so we need you to take the leash off. we need to have a lot more freedom to spy from u.s. territories. what they didn't say, and congress change that law. what congress did not address is that lots of u.s. communications are now floating across foreign services. if you're sitting here in washington and you send an e-mail to cleveland, it is literally quite possible unlikely that your e-mail is going to cross ireland or a data center in hong kong. the global internet balances its load by distributing in microseconds the communications flow and the path of communications everywhere. where it is allowed to resume -- where the nsa is allowed to presume that the people it is intercepting our foreign, it does things like this. the nsa with its british counterpart is breaking into the privately owned links that google has between its many data centers around the world. so a data center in hong kong, one in latin america, they have private fiber that links them directly. nsa was breaking into that and intercepting the traffic that went through them, which is to say ultimately is able to reassemble the entire contents of the data center if it wants to. google and yahoo! won't say what percentage of their users are americans. let's say it is half or one third. you are talking about ultimately not only the metadata but also the content of hundreds of millions of people that are crossing into these flows that the u.s. feels free to dip into. the legal term for that is incidental flexion. you are targeting foreigners of some kind or another, and as it happens, incidentally, foreseeably, but not your actual purpose, is getting a lot of americans with it. once you have them in your storage tank, as was acknowledged in writing, the nsa feels free to search through it in its own data repositories. if i say to you collectively in this room that i have a foreign target, i'm just going to collect everybody smart phone and download everything from it, all your appointments, all your text messages, all the little confidence as you have exchanged -- all the little confidences that you have exchanged with one another, your bank records, and i promise not to look at it unless i have a really good reason and it turns out that two , thirds or one third of you are americans, turns out that was incidental. it's perfectly legal, and you should be fine. it is not surveillance unless we're doing something with it. don't try that argument if you want to download movies. do not say i have three terabytes of pirated movies and music on my hard drive, but i haven't listened to them yet, so it doesn't count. that's not our ordinary understanding either of the law or of what it means to be understood violence. -- under surveillance. those issues were never debated publicly because we did not know about them. what snowden allowed us to do is say are we ok with that? >> the less point in a recent s describes the effort. in the clapper letter that revealed this, he pointed out that the committee actually debated whether or not they want to reauthorize the mystic approach, and they agreed that it had. so we are not putting the cart on the bottom of the deck here. bart is right. it was known and consciously, specifically debated in committee whether or not that should continue. ay the way, that is an edgy w to do that. it gets close to what we used to call reverse targeting. decent argument, but don't think this was a renegade nsa. fully debated. i'll try to be really efficient about this. an awful lot of these snowden regulations are pretty things -- are putting things out there the way they are now, and i think some of them are inaccurately mischaracterized. this is complicated stuff. >> i would be over polite about >> i would not be over polite about it just because i'm sitting on the stage here. this was screwed up badly. [laughter] >> you cannot entirely blame him though because he only knows what he has been given. >> ok, yeah, exactly right. [laughter] >> all right, then it is your fault. >> i'm given a piece of paper. i don't assume that it is authentic or that the facts contained therein are accurate. it turns out there are authentic documents in the world that are wrong. >> i used to get some of those briefings, too. >> i and my colleagues do a lot of reporting around the material. a lot of the reporting, certainly a big part of it is to talk to the peoples who are the stakeholders in government who are running the program. mystic is the story the washington post wrote a couple of weeks ago and said the u.s. is intercepting and recording all of the telephone calls of an entire foreign country. and storing them for 30 days. of the billions of calls they go into this 30 day holding tank, millions get sent back to fort meade to beast gordon process in desk to be stored and processed in their repositories. >> it's got to be a little country, right? >> we did not name the country and we did not give any hints about the country. we had already decided before we went to the u.s. government that we were not going to -- i've got to sort of hold things back from you. i've always done that from time to time in stories over the years. i could give some examples of that, but here it happens all the time. we were persuaded even dow yet -- even without yet talking to the u.s. government, that there were specific, concrete, foreseeable harms that would come from naming the country or saying what kind of country it was or what kind of intelligence targets required this approach. what we can say is, this raises a big public policy question. if you live in that country or work in that country or you have relatives or friends in that country and you make calls there, that your call is recorded. that would amount to millions of americans in any country in the world. so now they are not just collecting metadata, they are collecting content. let's say they are recording your words and they feel free to keep whichever ones they want and search whichever ones they want because it was incidentally collected in the course of surveilling a foreign country. that is not something the nsa could ever have done before in recent years. it is a capability that the nsa did without and kept us safe throughout the cold war, and it is, as the general says, it is quite edgy and worthy of debate. there is one last point to be made about oversight. the chief judge of the fisa court, the foreign intelligence surveillance court, said in his first ever interview with any news organization that the court knows nothing unless the nsa or the u.s. government tells it. it doesn't have any independent fact-finding ability, that it cannot go out and invest gate. -- cannot go out and investigate. it doesn't have a former nsa person like that. when the court found in 2009 at -- that the nsa had been unlawfully running wannabes big programs and had been consistently misrepresenting the facts of what it was doing to the court, the nsa response to the justice department was, you could make fun of it as these computers are so darn complicated. who understands what they are doing? the argument was there was no one at the nsa fully understood the workings of the program and therefore was inadvertent that they were describing it incorrectly to the judge. so when you're saying a judge is supervising it or that congress is overseeing in, the nsa is classifying almost all of this stuff at the top-secret codeword level. sometimes for very good reasons and sometimes not. there are fewer than 10% of members of congress who have a staff member cleared to read anything at that level. members of congress do not go into a 10,000 page intelligence budget or sit and studied dance -- sit and study dense hearings and reports. they just don't. they rely on staff for that. most of them don't get to talk to a staff member who is cleared to read what they are talking about. so the level of supervision in some cases is pretty theoretical. >> i am falling way behind on my accusation countering count, so my turn. [laughter] >> go ahead. >> as i was saying, bart does this half well half of the time. even the best of folks are going to get some of this wrong. is he just said, the nsa is so complicated it is hard to explain. not everyone is as conscientious on reporting these stories. a lot of people take the stories and run as quickly as they can to the darkest corner of the room. let's put that aside. let's just say that we can reduce all the stories that are out there to hard-core facts, that we have pulled a hyperbole and the misrepresentation out, and we can get it done. i'm not even going to argue about that's not what we're are doing. let's assume we can all get it there. you realize you're coming in late in the third real of a of a complex movie and you are looking at the third , reel. i'm assuming we have all the chaff out of the way. you're looking at the third reel and making the decision, i know the butler did it. and you really cannot make that decision until you walk back to the first reel, and where did these things come from? why were they developed? i'll try to be very efficient about this. i became director of nsa in 1999. we were being overwhelmed by the volume of modern communications. we were approaching communications the way we had approached all of our previous life going after communications, which was burrowed down, get the right frequency and listen to the very specifically targeted call. now there we were with a tsunami of global data flying at us in a way that was beyond our ability to control. you are all fairly young and do not know what it was like communicating and nine teen 99. trust me -- a lot more protons than electrons out there now. we decided before 9/11 that the only way we could deal with volume was to quit acting like we are on a beach pushing back a tsunami wave and saying let's try harder to keep the wave from engulfing us. we decided turn around and swim with the wave and make the power of the wave your tool. that is collection and metadata. that is why we did it, it was in response to very specific challenge that if we had not dealt with, we would have gone deaf. technology change number two, the nsa spent most of his time watching the soviet union. there is not anyone regardless of your political or suasion -- regardless of your political persuasion that will raise that much of a finger in civil liberty concerns, with communications coming out of moscow, in soviet siberia while we are looking for interesting words to pop up on the net like "launch." [laughter] the 21st century equivalent of that isolated signal on a dedicated network being run by an oligarchic superpower, the 21st century equivalent of that signal are proliferator, terrorist, money laundering, child trafficker, narcotraffickers, etc. e-mails coexisting with your e-mails in a single, unified, global communication structure. there is no way nsa continues to do what it used to do for you if it cannot go out there and be in the flow where your communications and mine are cold co-mingled with legitimately targeted communications. that is just the reality. the third change, and bart mentioned this already, that is the fact that the global communications grid changed in such a way that most global communication either resided or transited the united states just because of american dominance in global telecommunications. yet, without the fisa amendment act am a an e-mail from a bad man in pakistan to another bad man in yemen, i don't think it was the intent of the founders and that is why the change in the fisa act. the fourth change in reality, and this is 9/11, that is simply the fact that the enemy was inside the gate, and that legitimate foreign intelligence targets were here in america. after the 9/11 attack, there was the joint inquiry commission that was made up of both the house and senate intelligence committees. one of their findings was that nsa, that would be my nsa, the one i was running before 9/11, was entirely too cautious in dealing with the al qaeda communications of most importance to the united states. and that would be al qaeda communications, one end of which was in this country. and the metadata program was designed to be, frankly, the lightest possible touch we could devise to know which of those communications entering or leaving this land would be the ones we want to drill down on for content collection. after having seen the whole movie now, you may still be pretty confident the butler did it. but they did not develop out of an nsa director like me or keith alexander, acting like mr. burns on the simpsons going "excellent." [laughter] i've been waiting to do this for decades. they were logical responses to technological and operational challenges. one more thought. picture life as a triangle for the subject. there are three sides of a triangle. by the way a happy triangle is , an equilateral triangle. it is in harmony. and the three sides are threat, technology, law, and policy. you got it? what you want is that if is -- that your technology is responsive to the threat and used within the confines of agreed law and policy. those three things never changed at the same rate. but they are changing at amazingly different rates today. and the problem that bart points out in his writing, and one that i will freely admit, is that the other two sides change must faster than law and policy side -- the equilateral triangle turns into a violent looking isosceles thing because these things have changed while law and policy are still struggling to catch up. that is kind of where we are in the debate. >> i got a little bit lost with the triangles. >> i could do it again. [laughter] >> i am used to the curves on the diagram. i actually want to come back to the question and the point he has not yet actually supported, which is the idea that we are getting it wrong a lot are we -- or we are are getting out of context. that is certainly possible. it is possible there are things we don't know or that we are mischaracterizing something. there was one quite good story, i thought, that we were getting ready to publish and i was persuaded that it was wrong. because i'm talking to sources and i'm talking to the government, and i have very specific reasons -- i received very specific reasons to believe that i had the context entirely wrong and we simply killed the story. but what we are actually doing is trying to said light on the -- trying to shed light on the subject. that is not the case when it comes to the public debate on the part of the government. the government wants to keep the secrets and in a few outlying cases, people come out and say flatly false things to the public. everyone knows about example of director clapper and the question about whether the nsa collects any kind of data at all about tens of millions of americans, and he said no. but much more often, there is this radically is leading -- misleading information. there are comments made and information is provided that if a friend or family member did that to you, you would consider them to have betrayed you. to have deliberately lead you down the wrong path. here is an example. this 215 program -- the collection of all the call records, it does keep coming back to that and not the overseas collection. for a long time, the government said we won't tell you at all how many times we have used this power to collect business records. the business records provision. grave harm to the security of the united states if we told you the number of times we used it. then congress passed a law requiring them to disclose how many times they used it. so they came out one year and said it turns out there's nothing to worry about. this was 2009. they said we have only used it 24 times last year. don't worry about it. it turned out that they needed four of those times quarterly , four applications of this power, to get trillions of records. practice -- the way the program worked in practice, it may be that it is a large fraction if not the entirety of it. they say 24, it turns out it is trillions of records. they say we only take it when it is relevant to a terrorist investigation. it turns out their meaning of the word relevant is all of them. every of them could possibly be one relevant. if they had been straight with the american people and said we would like to be able to collect all the call records and we will regulate our use of them as follows, if they had done that around the time they actually started collecting them, soon after 9/11, or even if they had done it in 2007, they might well have won public support for it. but doing it behind our back, and the highly misleading statements about it have led to a considerable degree of shock when people find out what they are doing. >> i would like to go systematically through a few things that you both referred to a few times. if i can just take three or five minutes on each of the three things. first, the fisa courts and how that works, second, the 215 program, and third am the 702. starting with the fisa courts. my understanding that they were created in the 1970's, coming out of a recommendation which uncovered all sorts of abuses in the american intelligence program before that. the spying on martin luther king and all of that. to prevent that, they said they're going to create the special fisa court. how exactly does the fisa court work? can someone who is an intern or relatively young person like edward snowden or one of the american university students who are interning at nsa or cia, can they send an e-mail to the fisa court and say hey, i would like some data on this person? what is the process to have a fisa request? how is the request made and what is the process? >> the first thing to be said about the fisa court, it is incredibly odd. it exists. we are the only western democracy that takes these questions to the third branch of government. other countries, last time i checked that were democratic, like the united kingdom, issued these warrants within the ministries. it is a grand american experiment to involve the third branch of government in what is essentially an exercise of executive prerogative in terms of conducting espionage. what is unusual is that we do it this way. in order to do it this way, we put certain restrictions on this court because it cannot nearly be as open as other courts in our system. first of all, it is not adversarial. on the other hand, tony soprano does not get a lawyer either when the fbi comes up with a warrant on him. unfortunately, when we set up the fisa court, we used the language of law which we use warrants in criminal proceedings in order to go up on wiretaps in fbi and other investigations. there is a sharp distinction that is not often made in the public discourse about this. there's an incredibly sharp distinction between doing surveillance for law enforcement and for foreign intelligence purposes. i read commentary very often of suspicionless surveillance. that word has absolutely no meaning to me as a foreign intelligence officer. i do not collect information -- particularly talking about foreign nationals. i do not collect information on foreign nationals because they are bad. i collect information on foreign nationals because they are interesting. their communications contain data that will keep americans more free and more safe. they do not have to be bad people. to not confuse the two. the court is designed to warned protection against persons. we have reason to believe they are the agent of a foreign power. even though they enjoy protection under the fourth amendment -- >> you mean americans? >> american citizens all over the world and anyone in the united states of america, including diplomats, and any organizations composed of the above. to collect against them for foreign intelligence purposes requires a warrant. in addition, because of the peculiarities of the way the law is written -- remember, i told you it echoed the law enforcement statute? restrictions on collecting on a wire in the united states that did not exist for collecting out of the air in the united states. the fisa court gets a request for a warrant that looks like the size of a phone book in a city the size of cincinnati. it is about that thick. it is heavily laden with legal jargon. dealquires a great specific. in essence, what you are trying to prove to the judge is that the individual you want to target is the agent of a foreign power. i recall, in one instance -- >> not anymore. >> that is what it does. that change in the fisa amendment, i think 2008. >> it is also a change in the patriot act, which is much older. youyou are describing -- are describing an old model that is irrelevant to every single story that has been written. but that is not true. a wirer to collect on inside the united states, you also need court permission .ecause of the peculiarity the packet of information -- is that submitted by anybody at nsa or cia or department of justice? or does it have to go through a department of justice lawyer? >> it will be crafted at the agency that once the coverage. you have to go through a series of bureaucratic stops. the department of justice. all the ones i am aware of went through the white house for approval. the fisa courts have approved almost every request they have had. this gives the impression it is just a rubber stamp for an irrelevant process. that is why i was pushing for some of the details. >> if the judge is not happy with the fisa application, it is withdrawn and redone. all right? there is a dialogue there. no one who has been through the process would describe it as a rubberstamp. >> is this your understanding of the fisa process? >> almost everything that mike is talking about still happens. and is accurately described, with one exception, i think. but that is not the stuff that people are writing stories about and what the public is debating. that is the old model. they still use the old model for specific targets. we have something short of probable cause. it could be a reasonable articulable suspicion under the law. but we have reason to think that this person is not -- it used to be that they have to be an agent of a foreign power. now, it has to be relevant to the investigation of a foreign power and they have to demonstrate relevance. but this is an individual target. they want your records and my records, with a name on them. and it is in ones and twos and threes, and there are a few thousand of them a year. >> let's make that shift to the 215 program. >> ok. there are four kinds of data. george bush ordered michael hayden to start collecting these after 9/11 without the benefit of a statute or court supervision for several years. until the justice department rebelled and people were about to resign because they deemed parts of the government to be illegal. this is the famous "warrantless surveillance" of 2005. -- that was first disclosed at the end of there is metadata. 2005. it is data about data. it is who talks to who when and what equipment they are using. that is metadata. there is content. they were collecting metadata and content for telephone and internet communications. internet communications are not only e-mails. they are skype chats, documents you have stored in a cloud, video, the entire universe of content that travels the internet. and the telephony is your phone calls. what happened after the justice department rebellion and some public knowledge began to lead the debate, the fisa court was asked to switch gears and did switch gears. no longer was it only issuing warrants for individuals, john and tom and mary. it was now asked to authorize on a quarterly or annual basis huge programs of surveillance. the court would now say, once a year, that you may collect anything that you like from google, yahoo!, microsoft, provided that you certify that it fits targeting rules and it is treated and handled to minimization procedures that are intended to protect the privacy of u.s. persons, consistent with the operational needs. there is some protection. i will not deny that. not all that is as airtight as one may be led to believe. in any case, the court has a program with standing authority. you do not have to tell me the names. you do not tell the court the names of any of the people that they are collecting. you do not have to tell -- you know, there is not going to be an individual warrant for that person. it used to be that, in the intelligence world, it was not wrongdoing necessarily. there had to be a specific showing that the individual is likely to be a valid foreign surveillance target. that is gone now. the fisa court has accepted and interpreted the law that nobody in the public and, frankly, anyone in the unclassified world who studied this closely, and i count myself among them. several chapters of my last book was about this. i never suspected that the executive branch had told the court and the court had agreed that collecting every single person's call records was a definition of relevant to a terrorism investigation. >> why was that done, all the metadata? >> the description of what went on under the terrorist surveillance program when i was director of nsa is not accurate. that is about all i can say about that. he is right about the court and the executive branch going to the court for warrants that were brought, generalized towards, rather than specific targeted -- that were broad, generalized warrants rather than specific , targeted warrant against individuals. the fisa act put restrictions on who you can target and the techniques of targeting inside the united states. most, if not all, of the generalized warrants that are because aribed are lot of foreign conversations are in the united states. we approach the court for approval. the american-ness was created by temporary geography, not the communicants. bart is right. collection,mation there is collection of other individuals. the nsa has procedures to minimize -- protect u.s. privacy. your question was, why metadata? >> yes. said, the first warrant is in 2002. the chief judge of the fisa court. it allows us to resume things that were the subject of heated discussions only the previous march. we did it by not relying on the presidential power to conduct foreign intelligence but, by involving an additional branch of government, the judicial branch, to determine whether what nsa was proposing met the reasonableness standard of the fourth amendment. you and i are not protected against all searches. you and i are protected against unreasonable searches. and it was felt that the best way to do this within the constitutional structure was to go to a court that is familiar with surveillance and ask that question of a judge. in this case, the judge did issue a warrant. >> basically, the collection of metadata is the collection of all the phone call records. the nsa would store this in their warehouses. all of these records. they would not access or read them, except when they had process from a fisa judge. >> no. >> ok. program, take the 215 the one we are talking about. butr snowden's revelation, before the president's speech, how it existed, because it changes. the nsa, under the fisa court, get metadata. from the phone company, these are billing records. those areication is, records you have already shared with the phone company. they do not belong to you. the nsa get these records. you are not identified. all that is in there is fact of call. this number called that number at that time for that long. and, you know, how many phone calls do 350 million people make in a day. you get the idea of how much data is coming in. actually, what was happening was, this program was set up one -- set up by me when most people are making phone calls through land lines. it is much more difficult and legally complex. the fact that cell phones do not have individual call billing -- it was more difficult as people went to wireless communication to get the same kind of information them. in.nformation as time went by, the percentage of american phone calls it showed up on a daily basis in the database was shrinking to about 25%. the database is sealed off. it can only be approached by 200 nsa, allzen people at specifically trained. the machines that they use are keystroke-monitor. the nsa takes what they call a seed number. almost always a foreign number, number that shows up in a safe house in yemen. we find literature on an individual that shows that he has affiliations with our qaeda and has a cell phone. nsa goes to the database, and we ask, does the phone number show up in here? if someone in the bronx says, i talked to that guy once a week, the nsa asks that phone number in the bronx who they talk to. that is it. that is the metadata program. the change the president made in his speech is that the nsa used to be able to do three hops. the seed number to the bronx to who he called, to the next one. the president made it two hops. guy, to the bad bronx, and one hopped out. the president also said the nsa has to go to the court every time they make that query. this is unusual. keep in mind what the court is judging. the court is judging whether or not nsa has a reasonable suspicion that the four number -- foreign number collected through foreign intelligence is affiliated with al qaeda. it is not you that the court is checking on or you're right that -- or your rights that it is double-booking. it is looking over the shoulder of the intelligence professional to see if their judgment was correct. the last full year in which the nsa has records, the yelling to the train something -- through the transom thing happened 288 times. >> people's eyes start to glaze over. you are talking about nuances in law and operations. this is complicated and difficult. let's take it down to fundamentals. i am not advocating a policy position and i do not know where the line should be drawn. i know that there are questions that belong in the public domain , boundaries we collectively ought to defend. that is my ideology as a reporter. transparency enables the checking power of civil society, of the courts, of lobbying, of voting, and of market power. people get to decide why they do business with a company as it is not say. -- as safe as it used to seeing. companies respond by competing on privacy. let's look at the big picture. a wallet goes missing. what is the most efficient way to search for it? everybody gets searched on the way out the door. lots of societies do that. the british did that in the 18th century. that, generically, is the idea of a general warrant and that was a principal cause of the american revolution and one of the main grievances. the nsa wants to be able to do -- have that kind of efficiency, because global communications flows are in norma's, and because it can. -- are enormous, and because it can. they have never been able to do that before until recent years. most of these programs could not have happened before the year 2000 or so. the amount of data that exists in the world that has been produced and transmitted in the world since 2000 vastly eclipses all the data that was ever produced in the world. -- in the world up until 2000. there is a lot of it. and they want access to all of it. they are not just collecting metadata. the programs that no one ever wants to talk about, overseas, they are collecting content. lots and lots of content was up -- lots and months of content. there is an access point called "muscular." one strand of cable transmits 14 times the print in the library of congress. every second. it is huge data flows. they are sitting on that. anything that looks like an e-mail address book, and inbox, or a buddy list, they say "we want that." they suck that him. -- in. that is considered content under law. all the transmissions between google and yahoo! is content. that is being collected in bulk. the question is, are we comfortable with that? i understand why -- >> there are not people reading it. it is being collected and sent to a server somewhere. >> obviously, humans cannot lay eyes on all of it. they collect it. there is assumed to be billions of communications that are incidentally american. they feel free to store as much of it as they rationally believe they can use. for example, address books. they don't want all address books. do not want odorless address books. address books. they want address books of people where the formatting that gets transmitted lets them know what it is. useless forms of data, they throw out. they keep it and they circuit. -- search it. >> we should open up to questions. we have 40 minutes left. we have two microphones, one here, and one over there. i will ask people to line up at the microphones, please. finish your answer. >> that is unusual. i'm glad we have an hour for this. >> ok. all right. so, what i will ask -- >> sounds good to me. >> i will ask you to identify yourself and ask a brief question. save speeches for the dorm. >> my name is ari. i am a graduating senior. my question is for both of you. at what point do you want to start collecting on a terror subject inside of the united states who is an american citizen? >> i will go first. >> that is beyond my competence. >> you mean like the tsarnaev kids? we did not collect on them. >> i know that. >> and why didn't we? because they are u.s. persons, and they had a first amendment right to visit any websites they wanted to visit. their web surfing was not monitored and would not be monitored, and there is not a program that allows us to monitor it. >> hang on. that is not why the fbi and others did not monitor them. when they got a tip from the russian government that that the older one might be up to no good, they did a preliminary investigation. they said, we do not see anything here and they stopped. if they had wanted to -- they had a tip from the foreign government. gave the months of authority to do the surveillance. it was not because they were protected persons. >> i am sorry. i was not clear. that was not the point i wanted to make. given the coverage of the snowden revelation, there is a presumption that the nsa is sucking everything up. the fact of the matter is they , are not. bart is exactly right. in order to get that, they would have to have had a certain level of suspicion and go through the processes that allow them to be targeted. after boston, i get questions like, how did you not know they were going to those websites? because we do not routinely look at that. but the overseas collection of americans is much more interesting? >> sure. >> ok. here is the google data center. here is another google data center. two different countries. here is the line between them. nsa goes between them and take in anything and everything it wants from that. even though hundreds of billions of those communications will be u.s. communications. incidentally collected. why is that ok? >> let me make sure i understand the premise you are suggesting. you believe that gmail should be a safe haven for legitimate foreign intelligence targets of the united states. >> is that my question? >> that is how i translate your question. if i am not on that wire, i am not collecting gmail users. bart said, and this hurts your head, we have spent the whole evening here and have not gotten off of section 215. >> we are now. >> the approach you use in collecting foreign intelligence looks like a funnel. you have access. the next step is collect. then you process. then you read or listen. you analyze. you draw up a report. and you disseminate. you get the picture? the funnel gets smaller. very often, people use the number out here that describes the potential access and move that number up the chain to the more sophisticated and narrowly focused activities. that is not true. i go back to my premise that gmail is not a safe haven. google is an international company. a lot of people -- >> google is a u.s. person. >> google is a u.s. person in certain circumstances. by the way, that is not their cable. it is a virtual cable that they use. i asked you the question, hotmail, gmail, safe havens? these are global e-mail providers that are used by everyone. is your theory that you cannot touch it because eric schmidt will be very mad? >> i want to allow another question, but, in one line, there is a long distance to go from saying that gmail should be a safe haven for terrorists and saying, on the other hand, that you should be, as the u.s. government, siphoning in all of the content that goes across that table. including all the american communications. there is a room for gradation. >> there is. i just gave you the steps. not everything you collect is processed. not everything you process is reviewed. not everything you report is disseminated. >> a thing to point out that exists here -- the prism program , the first story i wrote about the nsa, gives the nsa more power than it ever has had to get gmail, all of the cool content -- the google content, from the providers, under an annual authorization from the court. it had quite a bit of latitude. it was not allowed to sift through everything in the server to see if there was anything that interested us. that is what it is doing in the overseas collection. >> bart is right. binary is too strong of a word. there is a view of the world -- ayman nietzsche and -- a manichean view the world when it comes to american intelligence. there is protected communications and everything else. nsa has a lot more freedom of action going after communications. some europeans do not attach privacy to a particular sovereign. it is a more general human rights. i got it. that is a subject of discussion. the american approach to this and that it is a binary world. -- is that it is really a binary world. protected persons and persons who are not protected. nsa possibility to work over , but noter 12333 without congressional oversight, is really quite powerful. >> let's take a question over here. >> this is something i heard about, reading the newspapers, about various governments trying to segregate their internets. i know china is doing this and germany is thinking about doing this. what effect would this have on the nsa possibility to collect information or, is such a thing even possible? can you cut off from the world internet? >> this is beyond my expertise. i have a few thoughts. first, there are a lot more people in countries talking hyperbolically about their desire to cut off the global internet and keep all their data at home than are actually taking steps to do it or will possibly do so. you are cutting yourself off from the world and it is damaging. it is not practical. there are countries that say google, yahoo!, all of the data produced by germans have to stay in german data storage and you cannot go anywhere else in the world. certainly not the u.s. the fundamental structure of the internet does not allow that. there are countries like china or iran. or, at the extreme end, north korea. they want to cut themselves off from free debate and free information and are using the nsa as an excuse to strengthen that argument. in some ways, if it was possible, it would be cleaner. it would take us back to world war ii-era. you could break the german or japanese military code and it was a no-brainer. if you could do it, nobody would see any downside to it at all. this is a code being used exclusively on networks being used by the enemy, in a war. now, if you try to break encryption, everybody -- almost everybody, uses the same stuff. and by the way, when there is stuff in the file that shows the nsa knows about this or that entity that has its own homebrew, we are not writing about that. we are writing about stuff that has general public interest. if you are breaking the encryption standard that run the internet because we want to get the bad guys, you are breaking everybody else's encryption. that is just the way, fundamentally, it works. >> a question here. >> thank you for coming. i am edmund sweeney. i am a freshman in the school of international service. i am a native of pittsburgh. >> philadelphia. we need a visa to go to philadelphia. >> i have one question in two parts. one for mr. gelman and one for general hayden. we talked about current and past. i want to talk about the future . world of wikileaks and edward snowden now, and i do not think that will be going away. my question is, in the future, years, theme, 30, 50 increasing demand for transparency and this general sentiment and people like julian assange and edward snowden, what -- with the release of information, what implications does this have for the future of organizations like the nsa and cia and how they will deal with those problems. -- those problems, and how they might change as a result? for mr. gellman, how will the media respond and interact with this information? >> i will go first and go quick. we have to recruit for the generation that produced bradley manning and edward snowden. that is just reality. that generation has a different compass to transparency than my generation. that is a reality. that is something my old community is going to have to deal with, particularly since one of the major muscle movements in my community has been to generalized sharing. we used to have a principle called "need to know." been0 or 11 years, it has "need to share." then you have snowden. this is hard. the other impact of this is that, when you undertake an espionage activity, you put what you can gain over here and what you can lose over there. let's talk about signal intelligence. what can i gain? i could hear the head of state. i could hear the head of state's personal views. that is really cool. what could i lose? you could be embarrassed if that is public. you make that judgment. by the way, this hand is not a moral hand. it is a political and public-relations hand. this is what i would lose if it was made public. that actually gets multiplied by the likelihood it gets made public. factor of thel likelihood of signals intelligence being made public, particularly when it comes to grabbing a signal out of the air, it is zero. it is undetectable. therefore, although the gain over here might not have been massive, the potential loss is not measurable because you cannot figure out a way in which it becomes public. with edward snowden, that number over here will never be zero again. you have to factor in insider threat that makes operations known that the target nations are never going to detect. that might be the strongest governor, brake on aggressive signals intelligence collection against some countries. not american guilt or friendship. it is that calculus. that law -- raw "national interest" calculus. there is another factor over here. >> i will also try to be brief. in july, a month after the revelations started, keith alexander was the director of the nsa and he gave a talk. he said that he wished he could bring every american into his huddle and tell them the plays he is calling. if he did, the bad guys would know. and so that is too dangerous. that is true. it is true that if he reveals his capabilities, everyone can hear it all stop -- hear it. there is no encapsulated walled off communication in global affairs. it is also true that when we did find out what was happening inside of the huddle, a lot of americans do not like the place being called. that is among the reasons why the existence of a classified stamp does not end the inquiry for me when i am deciding that something should be public. there are all kinds of stuff that is classified that is self evidently trivial. i have in my position a navy laundry manual for how you wash clothes on warships that is stamped secret. i also have noticed that there are interesting variations on how classification works, depending on the forum. there is an internal nsa report. i wrote about it. general hayden did not like my story at all. i talked about the number of compliance incidences, the nsa calls it, errors or violations of law. there are statistics. how many times do we have this compliance problem or that compliance problem. the internal report classified that as secret, which by definition means that it would do harm to national security if we knew the number of times they screwed up. that is hard to defend. when they report to congress, it is classified, top secret, special intelligence. therefore, 91% of all congressional staffers could not read it and it greatly restricted the oversight possibilities. so, the american public reacts when there is something that the u.s. government is doing and something they did not know they were doing. something they might have accepted if they had known in advance. or if it had been openly debated. >> thank you. >> i want to return to the question of call-chaining. i want to ask general hayden is my understanding of multiplication is correct in the program. you mentioned 288 inquiries. >> yes. >> each of those, which until recently was three hops, a over -- three hops, over the year, 1000 is the first hop. the second would be a million. there is some overlap. i am extrapolating. not by orders of magnitude. i just wanted, if that understanding is correct -- if you are talking about three hops, you are talking about 288 things. you are talking about many, many millions. that is close to the totality of u.s. communications. >> i'm relying on statistics that the former deputy director put out. in chris's words, and those inquiries, 600,000 numbers. i agree with you that that is not the right number of hops out. but, you know this is an , investigation. by the way it is just numbers. , no other identifying data is there. what they are looking for are not --s that may or may so, you have a spider chart. you have a number in buffalo. it is interesting when the second hop out of buffalo hits a second hop out of schenectady. that is why it is done. it is done as an investigative process. you are looking for linkages that might merit further investigation. >> chris inglis did not explain what he meant by 6000. it is almost -- there is a saying in the newsroom that there is a danger when a reporter does arithmetic. but it is hard to imagine you can go even one hop, with on the order of 300 numbers, and touch only 600,000. that means you are multiplying by only that means that each 200. number called an average of less per year.erson this is what chaining is, from a non-computer science person. we have all heard of six degrees of separation. six degrees of separation on average. it is not just a play on a novel. it is important computer science theoretical work that was done. it said that the mean number of hops you have to do to touch every single person in the world, to touch from any one person to any other person, is six. let's suppose, more conservatively, the 300 people call 100 people a year and you multiply that by a hundred and that by 100 and that by 100. i don't do math. i count on my fingers. that is close to one million. >> i do math. it is a lot more than 6000. >> it is. that does not mean they did chain 100 number from each of the 300 numbers. they also said that it was fewer than 300 numbers in one year and the numbers have varied from year to year. you can be confident that the numbers have not very downward. -- not very downward. the statements are perfectly consistent with the possibility that some other year they had 5000 seeds. they would not have lied if they said it this way, but that is the exact kind of massaging of data in public statements that they have done and in other demonstrable ways. >> my name is harry. my question is less technical. it is for both of you were -- or neither of you. it seems obvious to the casual observer that, every time there is a national tragedy, there is a reaction within the populace and government for a -- where we give up liberty for security. the patriot act, the internment of japanese americans. obvious examples. it takes some time and society scales this back. is it concerning to both or either of you that, we could -- given multiple 9/11's in a short time, we could end up giving up a lot of liberty for security. whether or not you agree with the programs. >> thank you. right behind you? >> my name is sarah harvard. i am an aspiring journalist. i go to school at the school of international service. my question has to do with journalism in light of edward snowden. we have seen glenn greenwald and james rosen accused of conspiring with whistleblowers. congressional members have question for them to be put to trial. i was wondering what your thoughts were on investigative journalism. and, do you think that press freedoms are under attack by the obama administration? >> i would jump in on 9/11. here is where i do my moral calculus. despite my professional role, we are all responsible for our actions as human beings. my great fear is that we did not use the authorities available to us right now. i used the metaphor that, this is the box you want us to play in legally. articles raise issues about national debate. the nsa will say that they have two houses of congress, a president, a court that says it is good to go. until otherwise, they will play section 215 out to the edges. we are going to take the hops however many they take us. the background ethical argument for this is that, if we do not play with in this box and we fail and we have another catastrophic attack on the homeland, the box you will demand, not the one you will accept, the one you will demand will be out here. in a reverse psychology way, playing this aggressively with in the law of now is actually protection against dangers to civil liberties in the future. >> do you share that? the concern that if any of these revelations make it easier for another terrorist attack on the u.s., that in the future it will perversely lead to demands for much greater surveillance? >> everybody wants to talk about terrorism. that is not -- that does not account for nearly anything close to the majority of intelligence gathering. there are a lot of purposes. it is an emotional trigger. you can talk about all of this stuff as counterterrorism. some of it is and some of it is not. our society has always had and -- had pendulum swings. it is a cliché. the difference is, what happens under the regime of extreme secrecy? when you intern every japanese citizen of the united states, they are in big interment camps, and everybody knows it. you have announced it. and they were behind barbed wire and you can take pictures of them and look at your history books and there are the pictures. we know when we overreached and come to a decision after a certain span of time. we say, i do not like that picture and that was not the right thing to do. the supreme court reverses. when you are doing everything in secret or large parts of it in secret, it is hard to decide if you have gone too far. we are still now, all these years later, we are trying to resolve the torture debate. the senate intelligence committee has now voted to recommend for declassification hundreds of pages of the executive summary of a 6000 page report. they cannot publish their report under the current understandings of the way these things work and there is no law that says that only the president is the five -- gets to decide what is classified. classification is the artifact of an executive order. congress could pass a statute on it. it just has not done so. in any case, we still do not know what happened. very fully, there are 6000 more pages of conversation that they want to have. as of this date, they are not allowed to publish. when you have taken steps like, let's collect all the content that flows across this cable or all of this data about the phone calls that you make or, allowing us to put communications in our repository. we will decide what we can look at and when. we have good motives, trying to protect you. we do not get to debate those things. we would not be having these conversations it not -- if not for edward snowden. if it were not for stories that disclosed things the government intended never to disclose. >> i have one minor thought. those americans in the room, you are citizens of the nation with the most transparent intelligence community. there is no one near us. it does not make barton's argument that there needs to be more transparency. i agree that it does. you need to understand the baseline that you are working at. you have more information about your country's espionage than any other citizenry on the planet. >> let's take two questions over here and close that microphone. >> my name is james manning. my question piggybacks off of that well. we have heard about an overclassification of data and a shock reaction about sources and methods. my question is, how do we go about having that debate without compromising intelligence undertakings with the methods being used while avoiding shocks? as mentioned here. i will let general hayden answer. >> yeah. >> actually, the two speakers before me cover the questions i would ask. if someone else, from this side -- >> you did not answer my question. >> the one about the journalistic -- i would be happy to answer. i got distracted. one, therenalistic are some alarming signs. there have been more probes from prosecutions under obama. everyone has read this. more than all previous presidencies combined. they have used aggressive means of surveillance against the associated press and fox news. their legal construct is that a leak of classified information is a counterintelligence problem. counterintelligence is a legitimate foreign intelligence surveillance target. therefore, that makes reporters doing reporting legitimate targets of intrusive methods of electronic surveillance. i spent a lot of my time trying to protect the security of my communications. not only from the u.s. government. that is been in my threat model as a reporter for a long time. but also from the foreign governments that want documents that i have that should not be public. they might want to come get them. all of that being said, i am sitting on a stage, a free person and not in handcuffs having a civil conversation with general hayden. you can read the espionage act or various other statutes. there are ways to read them. there are available theories of prosecution under which i could be charged. it is not because we do not have laws to prosecute journalists. it is because we have a legal and political norm in this country that says that this is a line that we do not want to cross without reasons very different from what we are seeing right now. and, so, by the way, when you ask about sanctions or controls on me, i am well aware that if i published a story that clearly and obviously led to a security disaster, that could change the legal and political norm according to which i am not charged with a crime. >> i wrote an op-ed for cnn.com on the investigations. i do not come out close to where bart -- quite where bart is, but i am closer than you might think. i thought that the prosecution of the nsa collapse under its own weight because of overreach. some things deserved response from the government. not that. i was troubled by the scattershot subpoena on the associated press and the identification of rosen as a co-conspirator. that is someone of my background. transparency, how do you make that work? it is very hard. i do not have a good answer. we are going to have to -- the intelligence community has to be more transparent than it ever has before. if we are not, you are not going to let us do this stuff in the first place. caveat. one by doing this, we will make you more comfortable. but it is inevitable that we will make usa. -- make you less safe. that is the deal. >> thank you for coming. both the president and the congress in the usa freedom act and several other bills have introduced the special advocate. this is a privacy and civil liberties advocate that we -- that would be placed within the fisa court. and some proposals of this, you would be granted powers to appeal to the federal courts. -- appeal decisions of the fifth court of appeals to the federal courts, potentially ending up in the supreme court. i was open to get your general thoughts and comments on this position, in general. the potential effectiveness and, also, whether you think the granting of standing was going too far. >> one more. >> hi. thank you for coming. my name is alejandro alvarez. i am a sophomore in the school for communication. dick cheney spoke at our campus. he said that he believed that 9/11 could have been prevented if the nsa had capabilities back then that it currently has. do you agree with this statement? why or why not? >> there has been enormous amounts of scholarship on whether 9/11 could have been prevented with the technology of today. it has been fairly well established and is the view of the 9/11 commission that 9/11 could have been prevented with what they had then if they had used it as designed and had the coordination between the fbi and cia had gone as it should have. but that is sort of beyond my qualification to speak. the issue of the fisc advocate is also beyond my competence. i follow and have read a lot of opinions now. i have read some fisa requests in the past. any preceding before a mutual -- any proceeding before a neutral arbiter is going to be, in the long run, working better and better if there is a checking power and an advocate. we know that the fisa court has of big a number decisions for the first time in its history that said certain very large-scale programs were lawful. before, it was only individual warrants. we know that the first time that that a federal judge considered that program in a contested legal proceeding, it was found to be unconstitutional. another one considered it shortly after and said that it was constitutional. that is the whole point. a contested perceiving tends to -- proceeding tends to bring out the best evidence. in principle, i would before bein principle, i would for that. >> advocate for individualized warrants. we do that in the criminal system. number one, and happens less frequently. -- it happens less frequently. it has implications. you want the benefit of the avid -- adversarial process. with regard to 9/11 what vice , president cheney was referring to was two guys in san diego. we, at nsa, intercepted seven or eight phone calls from san diego to a safe house. -- safe house in yemen. clearly, the selector, the target, was the safe house in yemen. we detected the call. there was nothing in the physics of the intercept or in the content of the call that told us that these guys were making the call from san diego. we have people speaking arabic calling to a safe house in yemen. i think one of them his wife was , pregnant and he was asking about her welfare. we intercepted seven calls and pushed up reports on intelligence. again, the content of the call in san diego. with the 215 program, when you go through the transom, the phone number in san diego races is hand. -- raises its hand. that is what the vice president was referring to. barton is right. there are other ways we could have done better prior to 9/11. saying that we could have done otherwise is like saying, all i want to do is when things close. -- is win games close. no coach has that as a game plan. i would like to have the additional capacity. >> when you say the number would have raised its hands under the 215 program -- >> the metadata would have recorded the connection between the u.s. number and the yemen number. >> thank you. we have two last questions. one here, and then here. >> my name is chris ayres. i am a sophomore in the school of public affairs. my question is for mr. gellman. you mentioned the data that you have to protect because you are a target for the u.s. and outside countries. what do you do with the data that you consider to be too important to publish? you delete the data? do you keep that? do you know what the other main receivers of this data have done? >> go ahead. >> for the final question, thank you very much for getting into the details of this program. to return more to where we started talking about, we talked about how radically data collection has expanded in the last decade. mr. gellman, you pointed us to this intercepted between google centers and bulk data collection. since data collection has changed so much, should our concept of surveillance and what it means to be surveilled change? we were talking about data going from a public company -- private company. we, as americans, have enough our data to private companies will stop should that mean the -- to private companies. should that mean the same thing? >> security, for reasons that are obvious, i'm not going into all of the details. [laughter] as a general proposition, what i have done, with the benefit of the expertise of some of the best people in the world on this because they have been available, i have kept the material physically secure. there are physical barriers as to where it is. it is on encrypted computers with the best modern encryption. it is now, when you get to if frontal attack on encryption, the encryption still stands against any country in the world and it never touches a network. it is on a computer that never touches a network. there are other things. i'm not going to go any further than that. i have, actually, the ironic thing is, i have been asking since the first day of last year, for the more secure way to communicate with the government when i tell them what i have each time i write a story. i say, i would like to tell you about this story. i'm telling you every single fact that i am contemplating publishing. i want to understand whether it is correct, in the right context, if you want to tell me anything about the damage that might be done. i have said, it is crazy to have this conversation on an open phone line or e-mail. and, nine months later, they have not provided me with a secure means of having those conversations. it is as simple as a key that is not -- it is not bureaucratically or legally simple for them. and so we have these odd 17, andtions about page a squiggly looking shape in the bottom left and words that rhyme with each other. i'm -- literally, words that rhyme with each other on the page. so as to avoid putting an all out on open phone lines. there are ways that this could be better approached. >> let the record show that bart retains the data. just like nsa. [laughter] >> if you think that is the same, we have more to talk about. >> on the last question on the , meaning of privacy in the digital age, in an age where every time anyone uses easy pass or goes shopping, giving all sorts of information to companies voluntarily. we are comfortable giving away tons of metadata and content of data as everyone who has ever gotten a pop-up ad after they have made an inquiry knows. does this change how we think about these topics at all? >> of course it does. privacy is the line we continually negotiate between ourselves as unique creatures of god and as social animals. and that line changes. i think it is rapidly changing now with the digital, interconnected age. it is a nightmare for security services in a democracy who are sworn to protect reasonable expectations of privacy when the reasonable expectations of privacy when the definition of reasonable is a movable feast within a broader culture. >> there are two things going on legally and conceptually, in terms of privacy. one is a third-party doctrine. i voluntarily told verizon, who i voluntarily transmitted my voice over communications that cross all sorts of other companies, therefore, i have no lawful or moral reason to believe that that is confidential. privacy is relational.

Transcripts For CSPAN Key Capitol Hill Hearings 20140416

people are keeping track of you, let alone every time you use an e-mail on massive accounts. to make an informed judgment about the nsa programs, we have to know what they are. i want to spend a lot of the time during our our talking about what those particular programs are, how they work, etc. but first, since we are hosting this at a political theory institute, i would like to start by asking a few normative questions around which i think all the others will revolve. so what i want to do, i will ask my first question to each of you now, so you will have a few seconds to think while i'm asking the other. first, what right do you have to publish secrets determined to be such by our duly constituted political authorities? how can you justify supplanting your own judgment for that of the people's government? and for general hayden, there is a parallel question. what right does the nsa or any other governmental body have to keep secrets in the first place? democracy is based on consent and if we the people don't know what you are doing, doesn't that necessarily undermine democracy? >> i'm going to give an answer that starts with the proposition that my history and politics grades are no longer subject to change. i will give a little bit of a theoretical or structural answer to that question. it has to do with the structure of self-government in a democracy. if the government is working for us, it is usually thought to have two elements, authorization and accountability. in elections, we say you get to be in charge for a while, and then we hold them accountable for their performance, not only for purposes of reelection but throughout a constant, civil society, political conversation in which the people get their say through a variety of mechanisms between elections. to me, the principal conflict here may not be between security and privacy. that is an important set of questions, but to me, it is between self-government and self-defense. both of which are core values. in fact they are both touched on by the time you get through the preamble to our constitution. defense is fourth among the six principle purposes of the creation of this form of government. the first words are "we the people." so you have this conflict which is to say we have secrets that are important to keep inherently for purposes of protecting ourselves. but information is essential to govern ourselves. the model i have in mind is that nobody gets to maximize one interest or the other. they have to be balanced. it would be cleaner and neater if you had a model in which there was some trustworthy principal balance or who could who could do that balance for you, but there is not. i'm not elected. i'm not accountable to the people for decisions i make about what to publish. but it is also the case that for the president and everyone working for him, they are not competent to decide what we need to know in order to hold them accountable. we cannot give them that power. we know information is power. secretly, the power to withhold -- secrecy is the power to withhold and obscure information and is a very great power, especially when combined with surveillance. it is sort of a one-way mirror in which we become more transparent and they become more and more opiate with the growth -- oh pay -- they become more us with theque to growth of secrecy that surrounds it. so the somewhat unsatisfactory answer we are left with, and i can go into this at much greater length, once you rule out all the other possibilities, is that there has to be a process of competition in which governments try to keep secrets, sometimes for good reasons and sometimes not. there is nobody who works in the intelligence field -- and mike would agree with this -- that would not accept that there is this massive overclassification. there are all kinds of things that are stamped with secrecy that need to be. -- that do not need to be. we can get into examples of that if you like. the ideas the government tries to keep secrets and would try to find them out. no one exerts coercive power at the margin. i guess i will just put it this way. there are trade-offs. we have studied one society very closely which maximized either security or the entrenchment of the state authority against all other interests. when i was a tourist in the soviet union, and moscow in 1984, i was getting lost all the time. wandering the streets of moscow. i usually do not need that much help with that. but it turned out that they deliberately drew the tourist maps incorrectly, because in case napoleon came by, he would take a wrong turn. it's not literally irrational to say were going to publish and in accurate map. all information in principle is useful to the enemy. but that is not the model we have. the model we have is not -- for example, jfk in his inaugural speech saying we will pay no price, we will bear no burden to secure the blessings of liberty. we are prepared to accept some risk in order to govern ourselves. after the competition -- and i will close here -- i find something out, or i get a big pile of documents, and i now know secrets that i'm not supposed to know, according to the government. there is a cooperative process in which i then go and talk to people, like mike hayden when he held that old job. we discuss the equities. the washington post and every journalist covering this stuff a great deal that they know if the public interest of the subject is outweighed by the danger of disclosure. >> bart and i agree on an awful lot of this question. the most important agreement is that this is a conflict of values. this is not the forces of light versus the forces of darkness. these are the things that free peoples have to balance all the time. frankly, where that line is is dependent on the totality of the situation in which we find ourselves. that line can move back and forth, depending on realities. when my public affairs officer or someone else would be aware that someone in bart's profession would have a story we felt really problematic, they would come to me and lay it out and i would say all right, and i generally would call the editor. my secretary would make the call and generally speaking, the editor would take the call from the director of the cia. the editor would come on the line, i really want to thank you for taking the call, and invariably, i would then begin the conversation with look, we both have responsibilities for the welfare and safety of this republic, but how you are about to exercise your responsibility, i believe, is going to make it much harder for me to exercise mind. so we really do need to talk. and we would have that dialogue that bart suggests. this is really tricky. he's got to have freedom of the press. there is a reason that is in the first amendment. on the other hand, the government has legitimate secrets. no fooling things are over classified, and human beings in government will make decisions that perhaps are less noble than we all want to be. as bart also suggests, when the post or the times the classifies -- declassify information on their judgment, they are performing an inherently governmental act without the system of checks and balances and responsibility that normally go over here on this side of the equation. this is getting much, much more complicated in our society. bart mentioned the old question of accountability and how do you hold a government accountable without a great deal of transparency? let me walk you through the arc of american history when it comes to american espionage. the american intelligence community isn't the only one that keeps secrets. the federal reserve -- they keep secrets. there are a lot of organs of government where the general welfare is improved by the government being closed and secret. at the beginning of the republic, and in most western democracies still, this espionage thing is pretty much contained in the executive branch. george washington was the nation's first spymaster. when he became president after running the spy ring for the continental army him he insisted on a secret overt action budget. with very little, if any, congressional oversight. so espionage has generally been viewed as being a province of the executive, and the way the nation changed espionage policy was changed the executive. by the mid-1970's, there was broad agreement after the church commission that having this responsibility, this knowledge, this oversight only within the executive branch was insufficient. and the great compromise of the 1970's was to create two bodies in congress and a rather unusual court to spread this transparency and accountability over all three branches of government. so we end up with the house permanent select committee and the senate select committee, and by intelligence we end up with the fisa court. the theory was that that was sufficient transparency to legitimately get consent of the government in a representative democracy. after all, this isn't ancient athens. that consensus in the grand compromise of the 1970's was adequate, has eroded. i'm sure we will talk about the 215 program here very soon, and people are going to say wait a minute, has been authorized by two presidents, the congress legislated it, it is the madisonian trifecta. i got it all. we've got all three branches of government. and great swing in american popular culture right now, and i'm not just talking about out here on the wings, i mean sustained among thoughtful people, is that that no longer constitutes sufficient consent of the governed. ok, ok. you told dianne feinstein, mike rogers, dutch ruppersberger, but you didn't tell me. we are kind of at that cusp in our political culture. i was director of the cia and i had a wonderful team of outside civilians. one guy got permission to use -- one of them i got permission iorina.her name, carly f i gave her a tough job. another subcommittee was doing i.t. and another doing recruiting. i gave carly a tough job. study this problem and come out and tell me, will america be able to conduct espionage in the future inside a broader political culture that everyday demands for transparency and more public accountability from every aspect of national life? they studied it for about four months and came back and gave me a firm, hardly speaking "we are not sure." which is a very telling answer. so here we are. with the national enterprise that i'm just going to assume we all believe is legitimate and necessary, american espionage, and a broader political culture that demands more transparency of an enterprise content demand secrecy for its very nature and its very success. that is why this is now so difficult for all of us. >> thank you. following up, bart, general hayden described what you are doing or the release of this information as being inherently governmental function. we will go into all the various checks that exist on the nsa and whether they work or not. but when you get that information, i guess there is no checks on you as a reporter, or are there? what is the process you go through in determining this fell on my lap, should i make it public or not? >> are there checks and what is the process? some of the same checks on us, not the defective checks, are not so different which is to say . which is to say that a lot of what the government does or does not do is not because it doesn't have the power according to some legal interpretation of the words on the page, but because it believes that there would be great public consequences, that public opinion would not support that. they would suffer reputational damage or political harm. the washington post cares right a bit about its reputation for telling the truth and telling it responsibly. and nobody wants to be responsible for some terrible thing happening if we publish story x and the next day there are 10 people strung up in the square of some foreign country because we disclose their identities. that would be a really bad thing for the washington post, in addition to being a bad thing for the country. so there are checks there. the process is as follows. >> before we go on -- on the checks point, for any of the nsa stories that you have run, are you aware of any bad consequences? >> there is a bit of a conundrum, which is to say that the secret has built and the -- has spilled and the washington post has published something. suppose you're inside the intelligence community and you know very specifically what some consequence was. disclosing that knowledge itself, there are constraints from telling you about it. on the other hand, there are consequences that we would know about. it's also the case that james clapper, the director of national intelligence, in a closed-door briefing used language quite different from what he usually said in public, that they went back and did a study and they found that over the years, there have been breaches and secrets lots of time, sometimes in the context of new stories or a foreign service disclosing something, or sometimes presidents disclose really sensitive secrets because they have a political reason for doing so. for example, when ronald reagan played a recording or quoted a recording of a conversation that took place in libya in order to persuade european allies to allow american planes to fly over their airspace so they could bomb libya. he wanted to prove that we had the case nailed, and very much against the recommendations of the intelligence community, he revealed that capability. they do a study, what is the damage assessment? clapper said that the damage assessments totally overestimate damage. it is not unnatural or abnormal for the nsa to gain and lose capabilities. technology is changing all the time. the channel that is working to listen in on a target stops working tomorrow because microsoft changes their network architecture, or the other country chooses a different vendor, or the target gets tired of that and switches to a different company or whatever. or targets are trying to practice communication security, so they switch some things. the other thing that clapper said is that people will change their behavior, but they will make mistakes, and we will exploit them. the nsa is not in immediate danger of losing its global preeminence in signals intelligence. i concede that it is possible that some of the stories published by some of these organizations sooner or later will have degraded the ability to listen in on something. i am prepared to accept that and i believe that you should be prepared to accept that, because at the same time, we are finding out things that have been doing that are completely contrary to what the public understanding was of what their job is and how they do it. if there is a program going on and the executive branch has blessed it and a select few people in congress have blessed it and the fisa court has blessed it, then when it becomes public american people are shocked by it, and many people are angry about it, and they start telling members of congress and they start introducing bills to stop it, and it gets brought to federal court in the first federal judge to assess its constitutionality says it is orwellian and very likely unconstitutional, then there is another way to tell the story of whether we had already considered as a society to this -- already consented as a society to this happening. i will stop there. >> general hayden, i know you're not not in government now, but are you aware of specific negative consequences from any of the nsa stories? >> three tiers of consequences -- all of them damaging. no, i'm not in government, so i don't know. >> are you being briefed on it? >> no, so that i can speak freely at events like this, i do not go to get updated. >> if i knew this was outdated information, i would have chosen someone else. [laughter] >> i know how to read a newspaper. there are three tiers of damage. one is operational. by the way if i were in , government, let me rephrase the question you just asked me. would you give me a list of all the communications you did not intercept yesterday? i mean that is really the , question you want me to give you the answer to. and well, i don't know. -- i agreen erosion with bart that intelligence is constantly moving. all advantage is transient. you have penetration, you just download the next whatever, you don't have penetration anymore. somebody buys the next level of encryption you don't have that you don't have that frequency , anymore. people with the communications path change patterns -- not running away from you -- just because people who build a communication path have a smarter way to spend a buck. we have got to go after it. we have simply accelerated the rate at which we will lose our current accesses. right. to my mind, that is not arguable. that is one level. will we recover it? sure. how much? $8 billion to $10 billion in order to recoup. the second level of loss is -- let me just stay with that for a minute. because bart makes a good point that these things have informed the necessary national debate. but they have done more than inform. they have also misshaped. let's take the one program i know we are going to dwell on which is 215. this was not bart's work, his flagship piece on this was 702. the 215 was pushed out the door with an incredibly detailed coverage of the front and, which -- the front end, which is they got all your phone records. only over a period of several weeks did the back end story begin to get out there into the public domain. so what is it they do with them once they have them? people let nsa would make the -- people at nsa would make the argument you may disagree even after you've gotten the back end story, but you really can't make an informed judgment until you have the whole context. i saw a recent poll that said over 30% of americans, because of the way this has been portrayed, over 30% of americans think the 215 program allows nsa to listen to the content of your phone calls. all right, so operational loss. second loss is in relation to foreign governments. here i'm not talking about about angela merkel being really upset. what i am talking about is orela merkel's spy service any other intelligence service around the world to whom we would go to for help in a matter of great sensitivity and a matter that would require great discretion, in which we say this is lawful, a little politically edgy, but it is the right thing to do for both our countries. come on, let's cooperate. we can keep a secret. there isn't another intelligence service in the world i should take that last sentence to the bank. our ability to cooperate has been eroded by foreign -- hasntally fundamentally been eroded by foreign intelligence services having no faith in our ability to keep things where they ought to be. the third level of damage has to do with american industry, who has been unfairly pilloried by this whole thing. now you have got google and microsoft. you have young mr. zuckerberg calling the president and complaining about how his company is being treated in the global digital domain. american companies do nothing more for the united states than other countries do for their sovereigns around the world. microsoft, at&t, etc., do the same thing that deutsche telekom does for german security services, etc., etc. but it's only american information that has been put out there, it has been put out there in a way that suggests, almost declares, that only the americans are doing this. i would suggest to you that practically the entire continent of europe, including their elected representatives, now know more about american signals intelligence than they do about their own country's signals intelligence. and that's not a balanced discussion. >> there are lots of things that america might want to be for -- want to compete for global preeminence on, but i don't think one of them is going to be that we are the most closed government and we are the best at keeping secrets. and we don't need it, because our security, we actually have a little bit of room, the luxury of allowing democrat debate over -- allowing democratic debate over big questions like -- should the nsa be collecting all of the records of all the calls that you and i make, are taking -- or, taking it out of the , thist of section 215 court-authorized telephone program what do we think about , something that is new that the nsa never did in its history on anything remotely like this scale, because the capabilities did not exist? the nsa now wants and has taken many steps to achieve a kind of comprehensive situational awareness of the world. it wants to be able to collect every electron and photon that passes over communications channels in case they might be needed. it is not just metadata, although i think that is enormously important for privacy. but it is also what they do overseas. the debate has been channeled somewhat deliberately in the current political context for the statutory kinds of surveillance. that is to say, under section 702 under the fisa amendments part.he prism under section 215 of the patriot act, they collect all your call records. overseas they are not bound by , statute, supervised at all by the intelligence community or supervised by any court including the intelligence court. they operate solely under the authority of a presidential executive order. since we had a little bit of a historical suite before about the 1970's, that me give you an additional point of view on that. the 1970's, after a bunch of gross abuses that today's programs don't at all resemble, there was a deliberate misuse of surveillance for domestic, political, corrupt purposes. they created the structure of oversight in the foreign intelligence surveillance act. the idea was you can do what you like overseas, spy on the foreigners, but you cannot do it at home. and you cannot do it from u.s. territories. so around the time that general hayden became nsa director, the u.s. government started making the argument and executive started making the argument to congress, you need to change this because the structure of global telecommunications has changed fundamentally. it's not american phone calls or e-mails, is just the nature of the distributed networks that you could be in germany and calling brazil and the call passes and transits through the united states, for example. so we need you to take the leash off. we need to have a lot more freedom to spy from u.s. territories. what they didn't say, and congress change that law. what congress did not address is that lots of u.s. communications are now floating across foreign services. if you're sitting here in washington and you send an e-mail to cleveland, it is literally quite possible unlikely that your e-mail is going to cross ireland or a data center in hong kong. the global internet balances its load by distributing in microseconds the communications flow and the path of communications everywhere. where it is allowed to resume that the people it is intercepting our foreign, it does things like this. the nsa with its british counterpart is breaking into the privately owned links that google has between its many data centers around the world. so a data center in hong kong, one in latin america, they have private fiber that links them directly. nsa was breaking into that and intercepting the traffic that went through them, which is to say ultimately is able to reassemble the entire contents of the data center if it wants to. googling yahoo! won't say what percentage of their users are americans. let's say it is half or one third. you are talking about ultimately not only the metadata but also the content of hundreds of millions of people that are crossing into these flows that the u.s. feels free to dip into. -- that the nsa feels free to dip into. the legal term for that is incidental flexion. you are targeting foreigners of some kind or another, and as it happens, incidentally, foreseeably, but not your actual purpose, is getting a lot of americans with it. once you have them in your storage tank, as was acknowledged in writing, the nsa feels free to search through it in its own data repositories. if i say to you collectively in this room that i have a foreign target, i'm just going to collect everybody smart phone and download everything from it, all your appointments, all your text messages, all the little confidence as you have exchanged -- confidences you have exchanged with one another, your bank records, and i promise not to look at it unless i have a really good reason, and it turns out that two thirds or one third of you are americans, turns out that was incidental. it's perfectly legal, and you should be fine. it is not surveillance unless we're doing something with it. don't try that argument if you want to download movies. do not say i have three terabytes of pirated movies and music on my hard drive, but i haven't listened to them yet, so it doesn't count. that's not our ordinary understanding either of the law or of what it means to be understood violence. -- under surveillance. were never debated publicly because we did not know about them. what snowden allowed us to do is say are we ok with that? >> one of the recent articles -- magic? >> mistake. >> mystic. thank you. it describes that effort. in the clapper letter that reveal this, he pointed out that the committee actually debated whether or not they want to reauthorize the mystic approach, and they agreed that it had. so we are not putting the cart on the bottom of the deck here. bart is right. it was known and consciously, specifically debated in committee whether or not that should continue. wayhe way, that is an edgy to do that. it gets close to what we used to call reverse targeting. decent argument, but don't think this was a renegade nsa. fully debated. i'll try to be really efficient about this. because an awful lot of these snowden regulations are pretty -- putting things out there, i frankly think some of them are mischaracterized or in accurately characterized. this is really complicated stuff. >> i would be over polite about sitting up there on the stage. >> ok, he screwed this thing up so badly. [laughter] thank you for that. for anybody who really knows how this stuff works. i think a lot of the story -- >> you cannot entirely blame him because he only knows what he has been given. >> right. >> that is obviously not the case. [laughter] >> all right, then it is your fault. >> i'm given a piece of paper. i don't assume that it is authentic or that the facts contained therein are accurate. it turns out there are authentic documents in the world that are wrong. >> i used to get some of those too. pubic >> i and my i used to get some of those briefings, too. >> i and my colleagues do a lot of reporting around the material. a lot of the reporting, certainly a big part of it is to talk to the peoples who are the stakeholders in government who are running the program. mystic is the story the washington post wrote a couple of weeks ago and said the u.s. is intercepting and recording all of the telephone calls of an entire foreign country. and storing them for 30 days. and then of the billions of calls they go into this 30 day holding tank, millions get sent back to fort meade to beast processed ined and their repositories. >> it's got to be a little country, right? >> we did not name the country and we did not give any hints about the country. because we had already decided before we went to the u.s. government that we were not going to name the country. i cannot say exactly why. i am in this bizarre position as a reporter of saying i have to sort of hold things back from you. i've always done that from time to time in stories over the years. i could give some examples of that, but here it happens all the time. but we were persuaded, even without yet talking to the u.s. government, that there were specific, concrete, foreseeable harms that would come from naming the country or saying what kind of country it was what or saying what kind of country it was or what kind of intelligence targets required this approach. what we can say is, this raises a big public policy question. if you live in that country or work in that country or you have relatives or friends in that country and you make calls there, that your call is recorded. that would amount to millions of americans in any country in the world. so now they are not just collecting metadata, they are collecting content. they are listening to your words. let's say they are recording your words and they feel free to keep whichever ones they want and search whichever ones they want because it was incidentally collected in the course of surveilling a foreign country. which is a legitimate foreign target. something the nsa could have ever unimaginably done before in recent years. it is a capability that the nsa did without and kept us safe throughout the cold war, and it is as the general says it is quite edgy and worthy of debate. there is one last point to be made about oversight. judge walton, the chief judge of the fisa court, the foreign intelligence surveillance court, said in his first ever interview with any news organization that the court knows nothing unless the nsa or the u.s. government tells it. it doesn't have any independent fact-finding ability, that it cannot go out and invest gate. -- and investigate. it doesn't have a former nsa person like that. when the court, in 2009, found that the nsa had been unlawfully running wannabes big row graham bigunning one of these programs and had been consistently misrepresenting the facts of what it was doing to the court, the nsa response to the justice department was, you could make fun of it as these computers are so darn complicated. who understands what they are doing? the argument actually was there was no one at the nsa fully understood the workings of the program and therefore was inadvertent that they were describing it incorrectly to the judge. so when you're saying a judge is supervising it or that congress is overseeing in, the nsa is classifying almost all of this stuff at the top-secret codeword level. there are fewer than 10% of members of congress who have a staff member cleared to read anything at that level. members of congress do not go into a 10,000 page intelligence budget or sit and studied dance se hearingsstudy den and reports. they just don't. they rely on staff for that. most of them don't get to talk to a staff member who is cleared to read what they are talking about. so the level of supervision in some cases is pretty theoretical. >> i am falling way behind on my accusation countering count, so my turn. [laughter] >> go ahead. >> as i was saying, bart does this have to well and half of half thehis half well time. even the best of folks are going to get some of this wrong. is he just said, the nsa is so complicated it is hard to explain. not everyone is as conscientious on reporting these stories. a lot of people take the stories and run as quickly as they can to the darkest corner of the room. let's put that aside. let's just say that we can reduce all the stories that are out there to hard-core facts, that we have pulled a hyperbole and the misrepresentation out, and we can get it done. i'm not even going to argue about that's not what we're are doing. let's assume we can all get it there. you realize you're coming in late in the third real of a complex movieof a and you are looking at the third reel. i'm assuming we have all the chaff out of the way. you're looking at the third reel and making the decision, i know the butler did it. and you really cannot make that decision until you walk back to the first reel, and where did these things come from? why were they developed? this requires a lot more time, but i'll try to be very efficient about this. i became director of nsa in 1999. we were being overwhelmed by the volume of modern communications. because we were approaching communications away we had approached all of our previous life going after communications, which was burrowed down, get the right frequency and listen to the very specifically targeted call. now there we were with a tsunami of global data flying at us in a way that was beyond our ability to control. look at your -- you are all pretty young, you don't know what it was like communicating in 1999. trust me, a lot more photons and electrons out there now. we decided before 9/11 that the only way we could deal with volume was light pushing back a -- was too quick -- to quit acting like we on the beach trying to keep back the tsunami wave and saying let's try harder to keep the way from engulfing us. we decided turn around and swim with the wave and make the power of the wave your tool. that is collection and metadata. that is why we did it, it was in response to very specific challenge that if we had not dealt with, we would have gone deaf. technology change number two, the nsa spent most of his time watching the soviet union. there was not anyone regardless of your political or suasion -- persuasion that was going to raise that much of a finger in civil liberty concerns, with with nsa intercept doing -- intercepting communications coming out of moscow, in soviet siberia while we are looking for interesting words to pop up on the net like "launch." [laughter] the 21st century equivalent of that isolated signal on a dedicated network being run by an oligarchic superpower, the 21st century movement of that signal are proliferator, terrorist, money laundering, child trafficker, narcotraffickers, etc. e-mails coexisting with your e-mails in a single, unified, global communication structure. there is no way nsa continues to do what it used to do for you if it cannot go out there and be in the flow where your communications and mine are cold o-mingled with legitimately targeted communications. that is just the reality. the third change, and bart mentioned this already, that is the fact that the global communications grid changed in such a way that most global communication either resided or transited the united states just because of american dominance in global telecommunications. yet, without the fisa amendment act, and you go from a bad man -- an e-mail from a bad man in pakistan to another bad man in yemen, i don't think it was the intent of the founders and that is why the change in the fisa act. the fourth change in reality, and this is 9/11, and that is simply the fact that the enemy was inside the gate, and that legitimate foreign intelligence targets were here in america. after the 9/11 there was the joint inquiry commission that was made up of both the house and senate intelligence committees. one of their findings was that nsa, that would be my nsa, the one i was running before 9/11, was entirely too cautious in dealing with the al qaeda communications, and that would be al qaeda communications, one end of which was in this country. and the metadata program was designed to be, frankly, the lightest possible touch we could devise to know which of those communications entering or leaving this land would be the ones we want to drill down on for content collection. after having seen the whole movie now, you may still be pretty confident the butler did it. you may still have kept any or all of those four things i just suggested, but they did not develop out of an nsa director like me or keith alexander, acting like mr. burns on the simpsons going "excellent." [laughter] i've been waiting to do this for decades. [laughter] they were logical responses to technological and operational challenges. one more thought and i will yield the floor. picture life as a triangle for the subject. there are three sides of a triangle. a happy triangle is an equilateral triangle. it is in harmony. and the three sides are threat, technology, law and policy. you got it? what you want is that if is responsive to the threat and used within the confines of agreed law and policy. those three things never changed at the same rate. but they are changing at amazingly different rates today. and the problem that bart points out in his writing, and one that i will freely admit is that the other two sides change must -- change much faster than law and that equilateral triangle turns into a violent looking isosceles thing because these things have changed while law and policy are still struggling to catch up. that is kind of where we are in the debate. >> i got a little bit lost with the triangles. >> i could do it again. [laughter] draw diagrams like this. i am used to the curves. i actually want to come back to the question and the point he has not yet actually supported, which is the idea that we are getting it wrong a lot are we are getting out of context. -- or we are getting it out of context. that is certainly possible. it is possible there are things we don't know or that we are mischaracterizing something. there was one quite good story, i thought, that we were getting ready to publish and i was persuaded that it was wrong. i'm talking to sources and i'm talking to the government and i have very specific reasons -- i received very specific reasons to believe that i had the context entirely wrong and we simply killed the story. but what we are actually doing is trying to said light on the dash to shed light on the subject. we are trying to get it all the way that is not the case when it comes to the public debate on the part of the government. the government wants to keep the secrets and in a few outlying cases, people come out and say flatly false things to the public. everyone knows about example of director clapper and the question about whether the nsa collects any kind of data at all about tens of millions of americans, and he said no. but much more often, there is this radically misleading information. information is provided that if a friend or family member did that to you, you would consider them to have betrayed you. to have deliberately lead you down the wrong path. here is an example. this 215 program the collection , of all the call records, it does keep coming back to that and not the overseas collection. which in some ways is much more intrusive. but for a long time, the government said we won't tell you at all hammy times we have used this power to collect business records. it is the business records provision. it is top secret which means it would do great harm to the security of the united states if we told you the number of times we used it. then congress passed a law requiring them to disclose how many times they used it. so they came out one year and said it turns out there's nothing to worry about. i think this was 2009. they said we have only used it 24 times last year. don't worry about it. it turned out that they needed four of those times, let's say four quarterly applications of this power to get trillions of records. trillions of call records. substantially all the call records. the way the program works, it may be that it is a large fraction of that but not the entirety of it. they say 24, it turns out it is trillions of records. they say we only take it when it is relevant to a terrorist investigation. it turns out their meaning of the word relevant is all of them. every one of them could possibly be relevant. if they had been straight with the american people and said we would like to be able to collect all the call records and we will regulate our use of them as follows, if they had done that around the time they actually started collecting them, soon after 9/11, or even if they had done it in 2007, they might well have won public support for it. but the doing it behind our misleadinghe highly statements about it have led to a considerable degree of shock when people find out what they are doing. >> i would like to go systematically through a few things that we both referred to a few times. if i can just take three or five minutes on each of the three things. the fisa courts and how that first, works. second, the 215 program. the 702. starting with the fisa courts. my understanding that they were created in the 1970's, coming out of a recommendation which uncovered all sorts of abuses in the american intelligence program before that. the spying on martin luther king and all of that. to prevent that, they said they're going to create the special fisa court. i question -- how exactly does the fisa court work? can someone who is an intern or relatively young person like edward snowden or one of the american university students who are interning at nsa or cia, can they send an e-mail to the fisa court and say hey, i would like some data on this person? or what is the process to have a fisa request? how is the request made and what is the process? >> lots of things to be said about it. the first thing said about the fisa court is incredibly odd. let me tell you why. it exists. [laughter] we are the only western democracy that takes these questions to the third branch of government. other countries, last time i checked that were democratic, like the united kingdom, issued these warrants within the ministries. it is a grand american experiment to involve the third what isf government and essentially the exercise of executive prerogative in terms of conducting espionage. what is unusual is that we do it this way. in order to do it this way, we put certain restrictions on this court because it cannot nearly be as open as other courts in our system. first of all, it is not adversarial. on the other hand, tony soprano does not get a lawyer either when the fbi comes up with a warrant on him. unfortunately, when we set up the fisa court, we used the language of law which we use warrants in criminal proceedings in order to go up on wiretaps in fbi and other investigations. there is a sharp distinction that is not often made in the public discourse about this. there's an incredibly sharp distinction between doing surveillance for law enforcement and for foreign intelligence purposes. i read commentary very often of suspicionless surveillance. that word has absolutely no meaning to me as a foreign intelligence officer. i don't collect information on foreign nationals because they are bad. i collect information on foreign nationals because they are interesting. i collect information on foreign nationals because their communications contain data that will keep americans more free and more safe. they do not have to be bad people. do not confuse the two. so now the court is designed to warrant collection against protected persons. so we have reason to believe that a, b, or c is now the agent of a foreign power. even though they enjoy protection under the fourth amendment -- >> by protected persons you mean americans? >> no, american citizens all over the world and anyone in the united states of america, including diplomats, and any organizations composed of the above. to collect against them for foreign intelligence purposes requires a warrant. in addition, because the peculiarities of the way the law was written -- remember i told you it echoed the law enforcement statute? it put specific restrictions on collecting on a wire in the united states that did not exist for collecting out of the air in the united states. i am not talking about cell phones. i am talking about satellite bounces. >> when you want a warrant on a protected person, what do you have to give to the fisa court? >> the fisa court gets a request for warrant that looks like about the size of a phone book in the city the size of cincinnati. it's about that thick. it is heavily laden with a lot of legal jargon. it is not all boilerplate. it requires a great deal of specifics. in essence, what you are trying to prove to the judge is that the individual you want to target is the agent of a foreign power. i recall, in one instance -- >> not anymore. >> that is what it does. that changed in the fisa amendment, i think 2008. >> it also changed under the patriot act, which is a lot older. >> and the protect america act which came between the two. >> you are describing this old model that is irrelevant to every single story that has been written. true, bart.is not in order to collect on a wire inside the united states, you also need the court's permission because of the peculiarities of the way the law was written. >> the big packet of information you were talking about, is that submitted by anybody at nsa or cia or department of justice? or does it have to go through a department of justice lawyer? >> it will be crafted at the agency that wants the coverage. it will go through a whole series of bureaucratic stops. it ends up that the department of justice. all the ones i am aware of when to the white house for approval. we hearf the things about the fisa courts is that they have approved almost every request they have had. this gives the impression it is just a rubber stamp for an irrelevant process. that is why i was pushing for some of the details. >> if the judge is not happy with the fisa application, it is withdrawn and redone. all right? there is a dialogue there. no one who has been through the process would describe it as a rubberstamp. >> is this your understanding of the fisa process? >> almost everything that mike is talking about still happens. and is accurately described, with one exception, i think. but that is not the stuff that people are writing stories about and what the public is debating. that is the old model. they still use the old model for specific targets. we have something short of probable cause. it could be a reasonable articulable suspicion under the law. but we have reason to think that this person is not -- it used to be that they have to be an agent of a foreign power. now it has to be relevant to the investigation of a foreign power and they have to demonstrate relevance. but this is an individual target. they want my records. they want your records and my records, with a name on them. and it is in ones and twos and threes, and there are a few thousand of them a year. >> let's make that shift to the 215 program. >> ok. there are four kinds of data. george bush ordered michael hayden to start collecting these after 9/11 without the benefit of a statute or court supervision for several years. until the justice department rebelled and people were about to resign because they deemed parts of the government to be illegal. this is the famous "warrantless surveillance" that was first disclosed at the end of 2005. there is metadata. it is data about data. it is who talks to who when and what equipment they are using. that is metadata. there is content. they were collecting metadata and content for telephone and internet communications. internet communications are not only e-mails. they are skype chats, documents you have stored in a cloud, video, the entire universe of content that travels the internet. and the telephony is your phone calls. what happened after the justice department rebellion and some public knowledge began to lead the debate, the fisa court was asked to switch gears and did switch gears. no longer was it only issuing warrants for individuals, john and tom and mary. it was now asked to authorize on a quarterly or annual basis huge programs of surveillance. the court would now say, once a year, that you may collect anything that you like from google, yahoo!, microsoft, provided that you certify that it fits targeting rules and it is treated and handled to minimization procedures that are intended to protect the privacy of u.s. persons, consistent with the operational needs. there is some protection. i will not deny that. not all that is as airtight as one may be led to believe. in any case, the court has a program with standing authority. you do not have to tell me the names. you do not tell the court the names of any of the people that they are collecting. you do not have to tell -- you know, there is not going to be an individual warrant for that person. it used to be that, in the intelligence world, it was not wrongdoing necessarily. there had to be a specific showing that the individual is likely to be a valid foreign surveillance target. that is gone now. the fisa court has accepted and interpreted the law that nobody in the public and, frankly, anyone in the unclassified world who studied this closely, and i count myself among them. several chapters of my last book was about this. i never suspected that the executive branch had told the court and the court had agreed that collecting every single person's call records was a definition of relevant to a terrorism investigation. >> why was that done, all the metadata? >> the description of what went on under the terrorist surveillance program when i was director of nsa is not accurate. that is about all i can say about that. he is right about the court and the executive branch going to the court for warrants that were that were broad, generalized warrants, rather than specific targeted warrants against individuals. the fisa act put restrictions on who you can target and the techniques of targeting inside the united states. most, if not all, of the generalized warrants that are being described are because a lot of foreign conversations are in the united states. we approach the court for approval. the american-ness was created by temporary geography, not the communicants. bart is right. in any information collection, there is collection of other individuals. the nsa has procedures to protect u.s. privacy. your question was, why metadata? >> yes. >> as i said, the first warrant is in 2002. the chief judge of the fisa court. it allows us to resume things that were the subject of heated discussions only the previous march. we did it by not relying on the presidential power to conduct foreign intelligence but, by involving an additional branch of government, the judicial branch, to determine whether what nsa was proposing met the reasonableness standard of the fourth amendment. you and i are not protected against all searches. you and i are protected against unreasonable searches. and it was felt that the best way to do this within the constitutional structure was to go to a court that is familiar with surveillance and ask that question of a judge. in this case, the judge did issue a warrant. >> basically, the collection of metadata is the collection of all the phone call records. the nsa would store this in their warehouses. all of these records. they would not access or read them, except when they had process from a fisa judge. >> no. >> ok. >> let us take the 215 program, the one we are talking about. after snowden's revelation, but before the president's speech, how it existed, because it changes. the nsa, under the fisa court, get metadata. from the phone company, these are billing records. the justification is, those are records you have already shared with the phone company. they do not belong to you. the nsa get these records. you are not identified. all that is in there is fact of call. this number called that number at that time for that long. and, you know, how many phone calls do 350 million people make in a day. you get the idea of how much data is coming in. actually, what was happening was, this program was set up by me when most people are making phone calls through land lines. it is much more difficult and legally complex. the fact that cell phones do not have individual call billing -- it was more difficult as people went to wireless communication to get the same kind of information in. as time went by, the percentage of american phone calls it showed up on a daily basis in the database was shrinking to about 25%. the database is sealed off. it can only be approached by two dozen people at nsa, all specifically trained. the machines that they use are keystroke-monitor. the nsa takes what they call a seed number. almost always a foreign number, a number that shows up in a safe house in yemen. we find literature on an individual that shows that he has affiliations with our qaeda and has a cell phone. nsa goes to the database, and we ask, does the phone number show up in here? if someone in the bronx says, i talked to that guy once a week, the nsa asks that phone number in the bronx who they talk to. that is it. that is the metadata program. the change the president made in his speech is that the nsa used to be able to do three hops. the seed number to the bronx to who he called, to the next one. the president made it two hops. seed number, bad guy, to the bronx, and one hopped out. the president also said the nsa has to go to the court every time they make that query. this is unusual. keep in mind what the court is judging. the court is judging whether or not nsa has a reasonable suspicion that the foreign number collected through foreign intelligence is affiliated with al qaeda. it is not you that the court is checking on or your rights that it is double-booking. it is looking over the shoulder of the intelligence professional to see if their judgment was correct. the last full year in which the nsa has records, the yelling through the transom thing happened 288 times. >> people's eyes start to glaze over. you are talking about nuances in law and operations. this is complicated and difficult. let's take it down to fundamentals. i am not advocating a policy position and i do not know where the line should be drawn. i know that there are questions that belong in the public domain, boundaries we collectively ought to defend. that is my ideology as a reporter. transparency enables the checking power of civil society, of the courts, of lobbying, of voting, and of market power. people get to decide why they do business with a company as it is not as safe as it used to seem. companies respond by competing on privacy. let's look at the big picture. a wallet goes missing. what is the most efficient way to search for it? everybody gets searched on the way out the door. lots of societies do that. the british did that in the 18th century. that, generically, is the idea of a general warrant and that was a principal cause of the american revolution and one of the main grievances. the nsa wants to be able to have that kind of efficiency, because global communications flows are enormous, and because it can. they have never been able to do that before until recent years. most of these programs could not have happened before the year 2000 or so. the amount of data that exists in the world that has been produced and transmitted in the world since 2000 vastly eclipses all the data that was ever produced in the world up until 2000. there is a lot of it. and they want access to all of it. they are not just collecting metadata. the programs that no one ever wants to talk about, overseas, they are collecting content. lots and lots of content. there is an access point called "muscular." one strand of cable transmits 14 times the print in the library of congress every second. it is huge data flows. they are sitting on that. anything that looks like an e-mail address book, and inbox, or a buddy list, they say "we want that." they suck that in. that is considered content under law. all the transmissions between google and yahoo! is content. that is being collected in bulk. the question is, are we comfortable with that? i understand why -- >> there are not people reading it. it is being collected and sent to a server somewhere. >> obviously, humans cannot lay eyes on all of it. they collect it. there is assumed to be billions of communications that are incidentally american. they feel free to store as much of it as they rationally believe they can use. for example, address books. they don't want all address books. they do not want ownerless address books. they want address books of people where the formatting that gets transmitted lets them know what it is. useless forms of data, they throw out. they keep it and they search it. >> we should open up to questions. we have 40 minutes left. we have two microphones, one here, and one over there. i will ask people to line up at the microphones, please. finish your answer. >> that is unusual. i'm glad we have an hour for this. >> ok. all right. so, what i will ask -- >> sounds good to me. >> i will ask you to identify yourself and ask a brief question. save speeches for the dorm. >> my name is ari. i am a graduating senior. my question is for both of you. at what point do you want to start collecting on a terror subject inside of the united states who is an american citizen? >> i will go first. >> that is beyond my competence. >> you mean like the tsarnaev kids? we did not collect on them. >> i know that. >> and why didn't we? because they are u.s. persons, and they had a first amendment right to visit any websites they wanted to visit. their web surfing was not monitored and would not be monitored, and there is not a program that allows us to monitor it. >> hang on. that is not why the fbi and others did not monitor them. it is because when they got a tip from the russian government that that the older one might be up to no good, they did a preliminary investigation. they said, we do not see anything here and they stopped. if they had wanted to -- they had a tip from the foreign government. that gave the months of authority to do the surveillance. it was not because they were protected persons. >> i am sorry. i was not clear. that was not the point i wanted to make. given the coverage of the snowden revelation, there is a presumption that the nsa is sucking everything up. the fact of the matter is, they are not. bart is exactly right. in order to get that, they would have to have had a certain level of suspicion and go through the processes that allow them to be targeted. after boston, i get questions like, how did you not know they were going to those websites? because we do not routinely look at that. >> but the overseas collection of americans is much more interesting? >> sure. >> ok. here is the google data center. here is another google data center. two different countries. here is the line between them. nsa goes between them and take in anything and everything it wants from that. even though hundreds of billions of those communications will be u.s. communications. incidentally collected. why is that ok? >> let me make sure i understand the premise you are suggesting. you believe that gmail should be a safe haven for legitimate foreign intelligence targets of the united states. >> is that my question? >> that is how i translate your question. if i am not on that wire, i am not collecting gmail users. bart said, and this hurts your head, we have spent the whole evening here and have not gotten off of section 215. >> we are now. >> the approach you use in collecting foreign intelligence looks like a funnel. you have access. the next step is collect. then you process. then you read or listen. you analyze. you draw up a report. and you disseminate. you get the picture? the funnel gets smaller. very often, people use the number out here that describes the potential access and move that number up the chain to the more sophisticated and narrowly focused activities. that is not true. i go back to my premise that gmail is not a safe haven. google is an international company. a lot of people -- >> google is a u.s. person. >> google is a u.s. person in certain circumstances. by the way, that is not their cable. it is a virtual cable that they use. i asked you the question, hotmail, gmail, safe havens? these are global e-mail providers that are used by everyone. is your theory that you cannot touch it because eric schmidt will be very mad? >> i want to allow another question, but, in one line, there is a long distance to go from saying that gmail should be a safe haven for terrorists and saying, on the other hand, that you should be, as the u.s. government, siphoning in all of the content that goes across that table. including all the american communications. there is a room for gradation. >> there is. i just gave you the steps. not everything you collect is processed. not everything you process is reviewed. not everything you report is disseminated. >> a thing to point out that exists here -- the prism program, the first story i wrote about the nsa, gives the nsa more power than it ever has had to get gmail, all of the google content, from the providers, under an annual authorization from the court. it had quite a bit of latitude. it was not allowed to sift through everything in the server to see if there was anything that interested us. that is what it is doing in the overseas collection. >> bart is right. binary is too strong of a word. there is a manichean view of the world when it comes to american intelligence. there is protected communications and everything else. nsa has a lot more freedom of action going after communications. some europeans do not attach privacy to a particular sovereign. it is a more general human rights. i got it. that is a subject of discussion. the american approach to this is that it is really a binary world. protected persons and persons who are not protected. nsa possibility to work over here, under 12333, but not without congressional oversight, is really quite powerful. >> let's take a question over here. >> this is something i heard about, reading the newspapers, about various governments trying to segregate their internets. i know china is doing this and germany is thinking about doing this. what effect would this have on the nsa possibility to collect information or, is such a thing even possible? can you cut off from the world internet? >> this is beyond my expertise. i have a few thoughts. first, there are a lot more people in countries talking hyperbolically about their desire to cut off the global internet and keep all their data at home than are actually taking steps to do it or will possibly do so. you are cutting yourself off from the world and it is damaging. it is not practical. there are countries that say google, yahoo!, all of the data produced by germans have to stay in german data storage and you cannot go anywhere else in the world. certainly not the u.s. the fundamental structure of the internet does not allow that. there are countries like china or iran. or, at the extreme end, north korea. they want to cut themselves off from free debate and free information and are using the nsa as an excuse to strengthen that argument. in some ways, if it was possible, it would be cleaner. it would take us back to world war ii-era. you could break the german or japanese military code and it was a no-brainer. if you could do it, nobody would see any downside to it at all. this is a code being used exclusively on networks being used by the enemy, in a war. now, if you try to break encryption, everybody -- almost everybody uses the same stuff. and by the way, when there is stuff in the file that shows the nsa knows about this or that entity that has its own homebrew, we are not writing about that. we are writing about stuff that has general public interest. if you are breaking the encryption standard that run the internet because we want to get the bad guys, you are breaking everybody else's encryption. that is just the way, fundamentally, it works. >> a question here. >> thank you for coming. i am edmund sweeney. i am a freshman in the school of international service. i am a native of pittsburgh. >> philadelphia. we need a visa to go to philadelphia. >> i have one question in two parts. one for mr. gelman and one for general hayden. we talked about current and past. i want to talk about the future. we live in a world of wikileaks and edward snowden now, and i do not think that will be going away. my question is, in the future, the next 10, 30, 50 years, the increasing demand for transparency and this general sentiment and people like julian assange and edward snowden, what -- with the release of information, what implications does this have for the future of organizations like the nsa and cia and how they will deal with those problems, and how they might change as a result? for mr. gellman, how will the media respond and interact with this information? >> i will go first and go quick. we have to recruit for the generation that produced bradley manning and edward snowden. that is just reality. that generation has a different compass to transparency than my generation. that is a reality. that is something my old community is going to have to deal with, particularly since one of the major muscle movements in my community has been to generalized sharing. we used to have a principle called "need to know." for 10 or 11 years, it has been "need to share." then you have snowden. this is hard. the other impact of this is that, when you undertake an espionage activity, you put what you can gain over here and what you can lose over there. let's talk about signal intelligence. what can i gain? i could hear the head of state. i could hear the head of state's personal views. that is really cool. what could i lose? you could be embarrassed if that is public. you make that judgment. by the way, this hand is not a moral hand. it is a political and public-relations hand. this is what i would lose if it was made public. that actually gets multiplied by the likelihood it gets made public. and the general factor of the likelihood of signals intelligence being made public, particularly when it comes to grabbing a signal out of the air, it is zero. it is undetectable. therefore, although the gain over here might not have been massive, the potential loss is not measurable because you cannot figure out a way in which it becomes public. with edward snowden, that number over here will never be zero again. you have to factor in insider threat that makes operations known that the target nations are never going to detect. that might be the strongest governor, brake on aggressive signals intelligence collection against some countries. not american guilt or friendship. it is that calculus. that raw "national interest" calculus. there is another factor over here. >> i will also try to be brief. in july, a month after the revelations started, keith alexander was the director of the nsa and he gave a talk. he said that he wished he could bring every american into his huddle and tell them the plays he is calling. if he did, the bad guys would know. and so that is too dangerous. that is true. it is true that if he reveals his capabilities, everyone can hear it. there is no encapsulated walled off communication in global affairs. it is also true that when we did find out what was happening inside of the huddle, a lot of americans do not like the place being called. that is among the reasons why the existence of a classified stamp does not end the inquiry for me when i am deciding that something should be public. there are all kinds of stuff that is classified that is self evidently trivial. i have in my position a navy laundry manual for how you wash clothes on warships that is stamped secret. i also have noticed that there are interesting variations on how classification works, depending on the forum. there is an internal nsa report. i wrote about it. general hayden did not like my story at all. i talked about the number of compliance incidences, the nsa calls it, errors or violations of law. there are statistics. how many times do we have this compliance problem or that compliance problem. the internal report classified that as secret, which by definition means that it would do harm to national security if we knew the number of times they screwed up. that is hard to defend. when they report to congress, it is classified, top secret, special intelligence. therefore, 91% of all congressional staffers could not read it and it greatly restricted the oversight possibilities. so, the american public reacts when there is something that the u.s. government is doing and something they did not know they were doing. something they might have accepted if they had known in advance. or if it had been openly debated. >> thank you. >> i want to return to the question of call-chaining. i want to ask general hayden is my understanding of multiplication is correct in the program. you mentioned 288 inquiries. >> yes. >> each of those, which until recently was three hops, over the course of a year, 1000 is the first hop. the second would be a million. there is some overlap. i am extrapolating. not by orders of magnitude. i just wanted, if that understanding is correct -- if you are talking about three hops, you are not talking about 288 things. you are talking about many, many millions. that is close to the totality of u.s. communications. >> i'm relying on statistics that the former deputy director put out. in chris's words, and those inquiries, 600,000 numbers. i agree with you that that is not the right number of hops out. but, you know, this is an investigation. by the way, it is just numbers. no other identifying data is there. what they are looking for are patterns that may or may not -- so, you have a spider chart. you have a number in buffalo. it is interesting when the second hop out of buffalo hits a second hop out of schenectady. that is why it is done. it is done as an investigative process. you are looking for linkages that might merit further investigation. >> chris inglis did not explain what he meant by 6000. it is almost -- there is a saying in the newsroom that there is a danger when a reporter does arithmetic. but it is hard to imagine you can go even one hop, with on the order of 300 numbers, and touch only 600,000. that means you are multiplying by only 200. that means that each number called an average of less than one person per year. this is what chaining is, from a non-computer science person. we have all heard of six degrees of separation. six degrees of separation on average. it is not just a play on a novel. it is important computer science theoretical work that was done. it said that the mean number of hops you have to do to touch every single person in the world, to touch from any one person to any other person, is six. let's suppose, more conservatively, the 300 people call 100 people a year and you multiply that by a hundred and that by 100 and that by 100. i don't do math. i count on my fingers. that is close to one million. >> i do math. it is a lot more than 6000. >> it is. that does not mean they did chain 100 number from each of the 300 numbers. they also said that it was fewer than 300 numbers in one year and the numbers have varied from year to year. you can be confident that the numbers have not varied downward. the statements are perfectly consistent with the possibility that some other year they had 5000 seeds. they would not have lied if they said it this way, but that is the exact kind of massaging of data in public statements that they have done and in other demonstrable ways. >> my name is harry. my question is less technical. it is for both of you or neither of you. it seems obvious to the casual observer that, every time there is a national tragedy, there is a reaction within the populace and government where we give up liberty for security. the patriot act, the internment of japanese americans. obvious examples. it takes some time and society scales this back. is it concerning to both or either of you that, given multiple 9/11's in a short time, we could end up giving up a lot of liberty for security. whether or not you agree with the programs. >> thank you. right behind you? >> my name is sarah harvard. i am an aspiring journalist. i go to school at the school of international service. my question has to do with journalism in light of edward snowden. we have seen glenn greenwald and james rosen accused of conspiring with whistleblowers. congressional members have question for them to be put to trial. i was wondering what your thoughts were on investigative journalism. and, do you think that press freedoms are under attack by the obama administration? >> i would jump in on 9/11. here is where i do my moral calculus. despite my professional role, we are all responsible for our actions as human beings. my great fear is that we did not use the authorities available to us right now. i used the metaphor that, this is the box you want us to play in legally. articles raise issues about national debate. the nsa will say that they have two houses of congress, a president, a court that says it is good to go. until otherwise, they will play section 215 out to the edges. we are going to take the hops however many they take us. the background ethical argument for this is that, if we do not play with in this box and we fail and we have another catastrophic attack on the homeland, the box you will demand, not the one you will accept, the one you will demand will be out here. in a reverse psychology way, playing this aggressively with in the law of now is actually protection against dangers to civil liberties in the future. >> do you share that? the concern that if any of these revelations make it easier for another terrorist attack on the u.s., that in the future it will perversely lead to demands for much greater surveillance? >> everybody wants to talk about terrorism. that does not account for nearly anything close to the majority of intelligence gathering. there are a lot of purposes. it is an emotional trigger. you can talk about all of this stuff as counterterrorism. some of it is and some of it is not. our society has always had pendulum swings. it is a cliché. the difference is, what happens under the regime of extreme secrecy? when you intern every japanese citizen of the united states, they are in big interment camps, and everybody knows it. you have announced it. and they were behind barbed wire and you can take pictures of them and look at your history books and there are the pictures. we know when we overreached and come to a decision after a certain span of time. we say, i do not like that picture and that was not the right thing to do. the supreme court reverses. when you are doing everything in secret or large parts of it in secret, it is hard to decide if you have gone too far. we are still now, all these years later, we are trying to resolve the torture debate. the senate intelligence committee has now voted to recommend for declassification hundreds of pages of the executive summary of a 6000 page report. they cannot publish their report under the current understandings of the way these things work and there is no law that says that only the president gets to decide what is classified. classification is the artifact of an executive order. congress could pass a statute on it. it just has not done so. in any case, we still do not know what happened. very fully, there are 6000 more pages of conversation that they want to have. as of this date, they are not allowed to publish. when you have taken steps like, let's collect all the content that flows across this cable or all of this data about the phone calls that you make or, allowing us to put communications in our repository. we will decide what we can look at and when. we have good motives, trying to protect you. we do not get to debate those things. we would not be having these conversations it not -- if not for edward snowden. if it were not for stories that disclosed things the government intended never to disclose. >> i have one minor thought. those americans in the room, you are citizens of the nation with the most transparent intelligence community. there is no one near us. it does not make barton's argument that there needs to be more transparency. i agree that it does. you need to understand the baseline that you are working at. you have more information about your country's espionage than any other citizenry on the planet. >> let's take two questions over here and close that microphone. >> my name is james manning. my question piggybacks off of that well. we have heard about an overclassification of data and a shock reaction about sources and methods. my question is, how do we go about having that debate without compromising intelligence undertakings with the methods being used while avoiding shocks? particularly as mentioned here. i will let general hayden answer. >> yeah. >> actually, the two speakers before me cover the questions i would ask. if someone else, from this side -- >> you did not answer my question. >> the one about the journalistic -- i would be happy to answer. i got distracted. on the journalistic one, there are some alarming signs. there have been more probes from prosecutions under obama. everyone has read this. more than all previous presidencies combined. they have used aggressive means of surveillance against the associated press and fox news. their legal construct is that a leak of classified information is a counterintelligence problem. counterintelligence is a legitimate foreign intelligence surveillance target. therefore, that makes reporters doing reporting legitimate targets of intrusive methods of electronic surveillance. i spent a lot of my time trying to protect the security of my communications. not only from the u.s. government. that is been in my threat model as a reporter for a long time. but also from the foreign governments that want documents that i have that should not be public. they might want to come get them. all of that being said, i am sitting on a stage, a free person and not in handcuffs having a civil conversation with general hayden. you can read the espionage act or various other statutes. there are ways to read them. there are available theories of prosecution under which i could be charged. it is not because we do not have laws to prosecute journalists. it is because we have a legal and political norm in this country that says that this is a line that we do not want to cross without reasons very different from what we are seeing right now. and, so, by the way, when you ask about sanctions or controls on me, i am well aware that if i published a story that clearly and obviously led to a security disaster, that could change the legal and political norm according to which i am not charged with a crime. >> i wrote an op-ed for cnn.com on the investigations. i do not come out quite where bart is, but i am closer than you might think. i thought that the prosecution of the nsa collapse under its own weight because of overreach. some things deserved response from the government. not that. i was troubled by the scattershot subpoena on the associated press and the identification of rosen as a co-conspirator. that is someone of my background. transparency, how do you make that work? it is very hard. i do not have a good answer. we are going to have to -- the intelligence community has to be more transparent than it ever has before. if we are not, you are not going to let us do this stuff in the first place. there is one caveat. by doing this, we will make you more comfortable. but it is inevitable that we will make you less safe. that is the deal. >> thank you for coming. both the president and the congress, in the usa freedom act and several other bills, have introduced the special advocate. this is a privacy and civil liberties advocate that would be placed within the fisc court. and some proposals of this, you would be granted powers to appeal decisions of the fifth court of appeals to the federal courts, potentially ending up in the supreme court. i was open to get your general thoughts and comments on this position, in general. the potential effectiveness and, also, whether you think the granting of standing was going too far. >> one more. >> hi. thank you for coming. my name is alejandro alvarez. i am a sophomore in the school for communication. dick cheney spoke at our campus. he said that he believed that 9/11 could have been prevented if the nsa had capabilities back then that it currently has. do you agree with this statement? why or why not? >> there has been enormous amounts of scholarship on whether 9/11 could have been prevented with the technology of today. it has been fairly well established and is the view of the 9/11 commission that 9/11 could have been prevented with what they had then if they had used it as designed and had the coordination between the fbi and cia had gone as it should have. but that is sort of beyond my qualification to speak. the issue of the fisc advocate is also beyond my competence. i follow and have read a lot of opinions now. i have read some fisa requests in the past. any proceeding before a neutral arbiter is going to be, in the long run, working better and better if there is a checking power and an advocate. we know that the fisa court has blessed a number of big decisions for the first time in its history that said certain very large-scale programs were lawful. before, it was only individual warrants. we know that the first time that that a federal judge considered that program in a contested legal proceeding, it was found to be unconstitutional. another one considered it shortly after and said that it was constitutional. that is the whole point. a contested proceeding tends to bring out the best evidence. in principle, i would be for that. >> advocate for individualized warrants. we do that in the criminal system. number one, it happens less frequently. it has implications. you want the benefit of the adversarial process. with regard to 9/11, what vice president cheney was referring to was two guys in san diego. we, at nsa, intercepted seven or eight phone calls from san diego to a safe house in yemen. clearly, the selector, the target, was the safe house in yemen. we detected the call. there was nothing in the physics of the intercept or in the content of the call that told us that these guys were making the call from san diego. we have people speaking arabic calling to a safe house in yemen. i think one of them, his wife was pregnant and he was asking about her welfare. we intercepted seven calls and pushed up reports on intelligence. again, the content of the call in san diego. with the 215 program, when you go through the transom, the phone number in san diego raises its hand. that is what the vice president was referring to. barton is right. there are other ways we could have done better prior to 9/11. saying that we could have done otherwise is like saying, all i want to do is win games close. no coach has that as a game plan. i would like to have the additional capacity. >> when you say the number would have raised its hands under the 215 program -- >> the metadata would have recorded the connection between the u.s. number and the yemen number. >> thank you. we have two last questions. one here, and then here. >> my name is chris ayres. i am a sophomore in the school of public affairs. my question is for mr. gellman. you mentioned the data that you have to protect because you are a target for the u.s. and outside countries. what do you do with the data that you consider to be too important to publish? you delete the data? do you keep that? do you know what the other main receivers of this data have done? >> go ahead. >> for the final question, thank you very much for getting into the details of this program. to return more to where we started talking about, we talked about how radically data collection has expanded in the last decade. mr. gellman, you pointed us to this intercepted between google centers and bulk data collection. since data collection has changed so much, should our concept of surveillance and what it means to be surveilled change? we were talking about data going from a private company. we, as americans, have enough our data to private companies. should that mean the same thing? >> security, for reasons that are obvious, i'm not going into all of the details. [laughter] as a general proposition, what i have done, with the benefit of the expertise of some of the best people in the world on this because they have been available, i have kept the material physically secure. there are physical barriers as to where it is. it is on encrypted computers with the best modern encryption. it is now, when you get to if frontal attack on encryption, the encryption still stands against any country in the world and it never touches a network. it is on a computer that never touches a network. there are other things. i'm not going to go any further than that. i have, actually, the ironic thing is, i have been asking since the first day of last year, for the more secure way to communicate with the government when i tell them what i have each time i write a story. i say, i would like to tell you about this story. i'm telling you every single fact that i am contemplating publishing. i want to understand whether it is correct, in the right context, if you want to tell me anything about the damage that might be done. i have said, it is crazy to have this conversation on an open phone line or e-mail. and, nine months later, they have not provided me with a secure means of having those conversations. it is not bureaucratically or legally simple for them. and so we have these odd conversations about page 17, and a squiggly looking shape in the bottom left and words that rhyme with each other. i'm -- literally, words that rhyme with each other on the page. so as to avoid putting an all out on open phone lines. there are ways that this could be better approached. >> let the record show that bart retains the data. just like nsa. [laughter] >> if you think that is the same, we have more to talk about. >> on the last question, on the meaning of privacy in the digital age, in an age where every time anyone uses easy pass or goes shopping, giving all sorts of information to companies voluntarily. we are comfortable giving away tons of metadata and content of data as everyone who has ever gotten a pop-up ad after they have made an inquiry knows. does this change how we think about these topics at all? >> of course it does. privacy is the line we continually negotiate between ourselves as unique creatures of god and as social animals. and that line changes. i think it is rapidly changing now with the digital, interconnected age. it is a nightmare for security services in a democracy who are sworn to protect reasonable expectations of privacy when the definition of reasonable is a movable feast within a broader culture. >> there are two things going on legally and conceptually, in terms of privacy. there is a third-party doctrine. i voluntarily told verizon, who was transmitting my voice over vacations that cross all sorts of other companies, therefore, i have no lawful or moral reason to believe that that is confidential. privacy is relational. i may be happy to tell you something and not all these other guys. that is not the way it works. the third-party doctrine began as an analog, pencil and paper thing. you voluntarily told the bank something and you waved your privacy. i'm going to cut myself off entirely from civilization. there is no way for us to function in the city or society or be employed or students without these communication methods. if we allow google to know that we are sending a love letter to our love interest, we are happy to let anyone read it. that is preposterous. the other is the reasonable expectation of privacy. that has been interpreted that, when you know the means exist, then you have no reasonable expectation to believe it is not happening to you. if i tell you that we have "through the wall" thermal imaging, you now know that your sex life is not immune. that technology does exist. you are all warned. the concepts have been stretched. there is a lot of work being done to try to bring that back into reason. >> thank you for an illuminating conversation. we will surveil your further thoughts on this. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> the united nations security council is meeting this afternoon to discuss ukraine will stop that's coming up in just a few minutes here on c-span. pro-russian insurgents commandeered six ukrainian armored vehicles along with their crews today. meanwhile, nato announced its moving troops and planes to the region. we will have live coverage of the human meeting starting shortly at 4:00 eastern here on c-span. congress is on break this week. we are bringing you some of the supreme court's notable oral arguments this term. as evening, a case dealing with free speech and discrimination. secrets look at whether service agents can be sued for removing protesters from an where george w. bush was dining while supporters were allowed to stay. that's at 7:00 eastern. at 8:00 eastern, the fifth annual women in the world summit at the lincoln center. hillary clinton joined a pop singer leading protests in ukraine. also, and opposition leader says what she describes in the aftermath of chemical attack tonight on c-span. u.n.e look from headquarters in new york city. the un security council scheduled to meet at 4:00 eastern today, just a few minutes from now to discuss ukraine. we will have that free live shortly on c-span as soon as it gets underway. a portion ofme, today's "washington journal" looking at the role russian gas is playing in the tensions between russia and europe. >> the energy weapon here is the gas flowing from russia to europe. been doing with its natural gas supplies since the start of this crisis we continue to your about in ukraine? >> in terms of supplies, russia hasn't done anything yet. what they have done in the past since the fall of the soviet union, russia has used a gas weapon on 50 occasions, either an overt threat or cutting off supplies and gas. this is straight out of the playbook of the post-soviet russian state, to use a factor they are you just supplier for natural gas as a weapon to influence what other states do. since the start of this crisis, they have not shopped supplies. to, but thereatened main thing they have done is jacked up surprise -- jacked up prices severely, so that adds to the stress of the new government and kiev. this matter to the greater eu? guest: the european union gets a big russian of its gas from russia. the biggest single supplier for the european union is russia. and about half of that goes across ukraine. depending on what happens in the dynamics between russia and ukraine, you could physically disrupt the amount of gas that get into europe. it met us for heating and for electricity. it matters a little bit less now that we are in the springtime. in the past, russian austerity in the winter, you can feel it a little -- it is a bit more acute. april and may, not as much. but this is something everyone in europe is on tender hooks about. let's talk supply and demand. the first is the chart for energy. the top is russian gas reserves followed by iran, qatar, and the united states on down. the russian gas supply, how big is that in the world market, the

Transcripts For WJZ Eyewitness News At 4 20130918

tommy, you scared me. were you alone down there? just me and the fabric softener. i'll have these shirts done for you tomorrow. you didn't see three guys, cutting through? no. was there a break-in? just go back to your room. keep the door locked, okay, sis? hey, chico, sergeant missed you at the muster. he's looking for you. see me shaking in my boots, chico? you hurt yourself? your left arm. i hope she was worth it, chico. your wife's always worth it, chico. ( loud bang ) tommy: son of a bitch! i'm not going to take it! every time. every single time. beer? i'll just take these. i'm not turning around, but who just came in here, three guys? tommy, don't start. you gotta smoke outside. we've been over this. hey. hey. easy. don't... 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[ female announcer ] even saturday nights. ♪ and the barcode scanner so weekend road trips don't mean losing your way. you can lose weight and still live big. ♪ join weight watchers online for free and get the app today. no eyewitnesses so far. we're canvassing limo drivers, cleaning crews. his tuxedo's well worn. he works for a living. maybe a maitre d' or a waiter. no, his shoes would be in better shape. could be a musician. well, if he is, i've never heard of him. eduardo mercaldo. 50. address up on the west side. no family pictures. credit card, metro card. let's see you guess what instrument he plays. well, he probably doesn't play the horn. he's missing too many teeth. no calluses from a guitar or drumsticks. but his hands, they have a long span, his fingernails are trimmed short, perfect for a piano. so eddie the piano player. check piano bars in the area. here. he was shot twice, that's what brought him down. killer moved closer... shot him through the heart. maybe eddie forgot to play his request. let's see the other one. we got a second round of shots fired about three minutes after the first. took a while to find this guy, the way sounds echo around down here. ramon ortiz, 36. no address. just two shots this time. one in the leg to bring him down, the other right through his heart. the shooter's getting more efficient. the 911 report we got mentioned six shots fired total. we only count five. that's what i mean, about the echo down here. ( faint beeping ) could be a truck backing up, but i don't hear an engine. sounds like it's coming from over there. they got an entry card for the garage. looks like he got shot going in. only one shot this time. hell of a learning curve. i think i got a shell casing in here. looks like nine mil. the shooter probably picked up his casings at the other sites. alejandro alvarez, 33. stockbroker. few hundred bucks in cash. mercaldo, ortiz and alvarez... i'm keeping my fingers crossed it's just a coincidence. i don't want it characterized as a racial thing yet. maybe the victims were all in the same bar and pissed off the same guy. eddie mercaldo's piano bar says he was there all night. there was no disturbance. and nobody remembers ever seeing the stockbroker there. doesn't lay out like a rage spree. it wasn't impulsive. the killer shot three people in ten minutes, with no eyewitnesses and then got away while the zone was flooded with patrol cars. so the guy spent time downtown, staking out his victims, his escape routes... he also spent time on a target range. he made every shot count. except for the one that fell into the grate, he took the time to pick up all his casings. he's afraid that we'll trace his weapon. maybe he's used it before, in another crime. shrier: we have a winner. it's nypd. the casing matches up with a glock that was used in a line-of-duty shooting a year ago. the weapon was assigned to an officer thomas callahan, currently at the 5-1 in the bronx. use your phone? sure. can you check to see if it was reported stolen? no. no report. how about the disposition of the line-of-duty shooting? the shooting was ruled self-defense. callahan was cleared and returned to active duty. not so active. he missed roll call this morning. tommy: hey! hey, down here! help me. help me! somebody help me. help! help me, i'm a cop. come on. please, help me. ( yells ) ( groans ) where am i? where am i? detective mellon: they brought him in half an hour ago, broken leg, bruises. he crawled out of a subway tunnel four blocks from the shootings. we heard he had a weapon. yeah, a .38, from his ankle holster. it was empty, though, the rounds had all been fired. is that his file? we're gonna need that. yeah. his pba delegate's on his way. callahan's brother officers are already here. great, a frat party. you mind, fellas? we need a few minutes with your brother officer. officer callahan, i'm detective eames, this is detective goren. we're from major case. anybody tell you what's going on? someone was throwing bullets around downtown last night. that's what we thought, maybe you were chasing someone in the tunnel, you know, a suspect. no. look, i was at home watching television, next thing i know, i'm in a tunnel with a broken leg. anything else, i don't remember. this blackout, maybe you were doing shots in front of the tv, popping pills... major case lady, take a big bite, okay? i'm not a dope head, i'm not a drunk. and you're not smart enough to hide your temper. you remember firing your ankle piece, your .38? yeah. when i was in the tunnel with my broken leg, i shot out my gun at the wall to try and get someone's attention. what about your other piece, your glock... do you know where that is? you gonna tell me? 'cause i don't remember. you remember your line-of-duty shooting? three men jumped you at night in the projects up in the bronx. an experience like that must've made you adjust your view of things. i got over it. those three men, they were african american, hispanic... hispanic, right? one of them was hispanic. did he look like this? no. or like this? or like this? no. who're these guys? the guys who were shot last night... with a glock. we retrieved a casing from a grate. it matched your weapon. i got nothing to do with them. you were downtown last night. what was the purpose? i don't remember. i never come down here. tommy, we find that hard to believe. we have a witness who saw you at harrison's steak house, it's on maiden and cedar. never been there. you guys are not gonna pin this on me, okay? i'm not saying nothing until my delegate and my lawyer get here. mellon: just got word. they found his gun in a trash can one station away from where this weasel popped up. he's done. there is no corner of maiden and cedar. you really think this guy doesn't know his way around downtown? the line-of-duty shooting, callahan fired seven shots. all but one missed. he's only been to the firing range twice since. i didn't think you could actually score this low and still keep your badge. this guy is no wild bill hickok. well, maybe he hooked up with someone who is. spots are great. just not on your faucet. spot resist finish. only from moen. buy it for looks. buy it for life. now features the new honey pepper grill. he could...go... all...the...way! he could...get... out of the way? my bad. kick off game day in the neighborhood with one app, two entrees for only twenty bucks. see you tomorrow. 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[ male announcer ] everybody loves to payless. he's well-liked. it's what i told ia an hour ago. when we talked to tommy, we had a hard time pinning down what would make him so well-liked. he's always there when you need a favor. he covers for the guys on holidays. what we noticed is is that he's had a lot of partners, especially in the last year. like, um, this one here. vasquez? he lasted less than three weeks. vasquez was smoking in the patrol car. tommy's got asthma or something. they couldn't work it out, so tommy filed a report. maybe... the old tommy would've, um... come to you instead, right? but since his self-defense shooting, his fuse got shorter? you could say that. eames: anything else you could say? something that never made it into a report? he's gotten careless. he's distracted? how's his attendance? every other morning he runs late. does he have a second job? not that he told me. i don't know what he does at night. maybe he's out hunting. eames: three alarm clocks, all set for 6:00 a.m. if he's not getting up, it's not for lack of trying. eggplant parmesan. somebody is bringing him home-cooked meals. i can't imagine a girlfriend setting foot in this place. mmm. looks like there's somebody whose smoking he doesn't mind. i don't see any lipstick. could be his partner in crime. i count four different brands. light starch. his domestic diva's been busy. nothing says rage-o-holic like a punch in the wall. his neighbor must love him. woman: well, tommy's always courteous and helpful. it's nice having a police officer in the building, i'll say that. and noisy too. well, maybe the tv now and then. oh, uh, no. my partner meant, um... when tommy punched the wall there. i wouldn't know that. i mean, everybody has their bad days. well, you're very lucky he didn't knock those lamps over. those are muranos, aren't they? did you get them at bergmann's? oh, gracious no. i work there. i couldn't afford that furniture. they're knockoffs. you ever see any visitors over at tommy's, or hear them? no. tommy keeps pretty much to himself. eggplant parmesan. that's... you. no, that... tommy's got the same containers next door. oh, yes. it's just as easy to cook for two as it is for one. same go for ironing? the poor man can't even sew a button. he works such long hours and those late shifts. late shifts? mmm. what time does he get home? oh, sometimes i hear him after 4:00 a.m. 4:00 a.m.? that's not a late shift. that's last call. man: it was very sudden. boom. he, uh... well, how can i say it? he just dropped dead. he and two other men, all on the same night, downtown. did he leave any... will or final instructions? apparently not. his death has made me re-examine things. i can't afford to continue to represent you. don't do this, john. everything can get straightened out. when it does, you let me know. until then, i'm sorry, bing. best of luck. man: yeah, sure. tommy's been coming in for years. he lives but three blocks away. he come in alone? yeah, sometimes around 7:00, sometimes around 11:00, just he, himself and him. these loosies are the same brands we found at his place. he doesn't smoke, so who buys them? he doesn't smoke? it's news to me. he buys those and smokes them like a chimney. you actually saw him smoke? where-- here? i don't let him smoke in here, even if he is a cop, and even if it is late at night. last tuesday night, he came in? yeah. and the same thing happened with the smokes? yeah, and then he asked if i saw three guys come in. he always asks if three guys are following him. when you see him walk, did you notice if he's clumsy or weaving? no. stiff, like a robot. when you talk to him, does he respond or does does he act like he's in his own world? humph. in his own world. carver's ready to get an indictment on callahan. he wants to know if he should start working on one for this mystery partner. the partner might not be a mystery much longer. goren: okay, thank you. the hospital had tommy under sedation since he was brought in. we need to talk to carver, get him off sedation. this is better for us how? it's better for him. son of a bitch. they locked the damn window. i'm in for it now. hey, sister. going for a smoke? yeah, but i don't have much time. do you know who's out there? yeah. three guys. you've seen them, right? there's a lot of people out there. you don't know who we are, do you? no. what are you, cops? that's right. we talked to you about when you broke your leg in the subway. i don't remember that. i gotta go. you can't anywhere, tommy. you're under arrest. remember? hey, get off me. tommy, come on. get off me. tommy. tommy, calm down. your doctor's right here. tommy, this is dr. barnes. you've got to wake up. you've got to wake up! dr. barnes? um... what's going on? how come i'm out of bed? it's all right, tommy, we're putting you back to bed, and we'll give you something to help you sleep through the night. okay, guys. he seems to have full-blown parasomnia. if he hadn't been taken off sedatives, we might not have caught it. what are the chances he killed three people in his sleep? virtually nil. but the person who did knew that tommy had this problem, and brought him along for the ride. a sleepwalker with a gun. the perfect fall guy. then bring 'em back for a th to southern tradition...s around. we like to call& frying! new southern fried maine lobster. only this fall at joe's. and this sorry to interrupt, your premium right here. i just want to say, i combined home and auto with state farm, saved 760 bucks. love this guy. okay, does it bother anybody else that the mime is talking? frrreeeeaky! [ male announcer ] bundle home and auto and you could save 760 bucks. alright, mama, let's get going. [ yawns ] naptime is calling my name. [ male announcer ] get to a better state. state farm. son of a bitch. they locked the damn window. i'm in for it now. hey, sister. going for a smoke? yeah, but i don't have much time. i sound like a damn lunatic. carver: you had no idea you had this condition? no. i used to sleepwalk when i was a kid, but i grew out of it. and you never noticed a punch in the wall, or the cigarettes in the ashtray? i just thought i had too much to drink. kinda didn't want to know. can you think of anyone who... might've figured out what was going on with you? no. no. i mean, if they did, they'd have told me, right? man: you suspect my client was framed? at this point, we're keeping our minds open to every possibility. who would do that to me? it's all right, tommy. we're finished here. how sure are we that this isn't some elaborate ruse by officer callahan? the doctors vouch for his condition. they think his shooting last year triggered it. there's no evidence he even knew about his condition. he never sought treatment, never took a sleeping pill. could he have killed these people while sleepwalking? well, the murder was premeditated. from what we read, parasomniacs are incapable of planning their behavior. they're hardly aware of their environment. they walk into traffic, they... fall out of windows. so, someone brought officer callahan downtown, used his gun to murder three people and then left him to sleepwalk off a deserted subway platform. that-that-that seems elaborate for a hate crime. but a hate crime is a good cover if only one of the victims is the real target. you'd hit that target first, to make sure you got him, before hitting the decoys. eddie mercaldo was the first kill. no bills overdue. the checkbook's balanced. a solid citizen. and an organized one. gig books. a record of every job he's played, all the way back to 1972. who he played with... where... and how much. eddie's challenging my opinion of musicians. he prepaid his utilities and rent, three months at a time. well, he was probably on the road a lot, didn't want to fall behind. here. he played caribbean cruises... four times in the last year. the cruise three months ago stopped in the cayman islands. cayman islands. it seems like the one stop all his cruises have in common. a lot of drugs go through the caymans. eddie might've been a courier. we should get a dog to sniff his luggage. he brought the electric piano on the cruise with him. you'd think that the ship would have their own piano. you see, something has been taken out. the old motherboard. he replaced it with smaller components and made room for contraband. enough for a couple of bricks of coke. we'll see. green tint on the lining. mmm. is it mold? ink. green ink. the swab's negative for drugs. humidity made the ink run. cayman islands. offshore banks. secret accounts, tax evasion. eddie was a money courier? maybe he got greedy and started skimming. well, whoever's money it is... has to know tommy. i didn't see any fortune 500s in his address book. there is someone close to tommy who might know what a fortune looks like. those murano lamps. i knew they didn't look like knockoffs. beth: three murders? it's inconceivable. i, uh... ( sighs ) tommy was always very decent to me. we think his rage stems from his shooting incident last year. did he ever confide in you about that? tommy doesn't confide. things just tumble out. last christmas, he asked me to light a candle for his mother. and that's how i found out that his mother had died on christmas eve, a few years earlier. and that's after knowing him, what? uh, three years? and that's when you moved in next door, isn't it? i don't remember telling you that. no, we looked it up in your rental application. we try to find out as much as possible about potential witnesses. like your job history, it's... sort of sketchy. goren: you've only worked here for four years. and already you're a personal shopper in the couture department. you have a lot of retail experience? why don't you look it up? we tried, but your social security number only goes back five years. you changed it. i had to. someone stole my identity. now, since this interview is not about tommy, i really do have to get back to work. you're tough, ms. landau. you don't let people push you around. i've had to learn not to. her outfit-- looks like one of those overpriced french designers, at least eight or nine years old. she probably bought it back in her other life, the one she doesn't want us to know about. the money eddie was carrying to the caymans, probably used to be hers. before she started using the name beth landau, she was known as elizabeth post, with an address off fifth avenue. goren: i got her. post v. post. it's a divorce action, started seven years ago. deakins: started? they're still married? apparently so. no kids. dozens of motions, mostly about finances. that's what this money is, contested finances. see if you can locate the husband. shouldn't be too hard. he's been at the same address for the last six years. bing: i'm sorry you came all the way up here, but, uh... i've never heard of eddie mercaldo. are you sure about that? because he was smuggling money, and you're hiding assets. we thought there was a natural connection. i am not hiding assets. no? 'cause the judge said so when she put you in jail for contempt. let me see... bing! right here. "for refusing to disclose the location of marital assets totaling more than $15 million." all that money's in an offshore bank. eddie was making regular runs, bringing back cash to pay your legal bills, take care of other business. no, no... your wife found out. she cut off your pipeline. she had eddie shot. don't be absurd. elizabeth went to holyoke, for god's sake. i mean, believe me, if that money still existed, elizabeth's lawyers would've unearthed it by now. you know, you've been in jail for contempt of court longer than anyone in the history of new york. i'm well aware of the kafkaesque journey i'm on. well, a journey that your wife put you on. now, i'd think that you'd jump at the chance to implicate her in a murder. she doesn't have the wherewithal for this sort of violent... calculation. oh, it's time for my shift in the mailroom. 38 cents an hour. don't tell elizabeth's lawyers. they'll move to garnish. implicating her would mean revealing where he hid the money. she's his wife; she's still entitled to half. he'd rather see her walk on three counts of murder than split it with her. ain't love grand? real fruit plus real nuts] introplus real multigrainsdleys bars and oatmeal plus! equals real delicious! quaker real medleys, your on-the-go burst of goodness! quaker up. side-by-side, so you get the same coverage, often for less. that's one smart board -- what else does it do, reverse gravity? 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[ flo chuckles ] [ whirring ] hey, how's that atom-splitting thing going? oh! a smarter way to shop around -- now that's progressive. call or click today. your life is a game of chance. chronic migraine, but what if the odds could be in your favor? botox® is an fda-approved treatment that significantly reduces headache days for adults with chronic migraine, 15 or more headache days a month, each lasting 4 hours or more. it's proven to actually prevent headache days. and it's injected by a doctor once every 3 months. the effects of botox® (onabotulinumtoxina) may spread hours to weeks after injection causing serious symptoms. alert your doctor right away, as difficulty swallowing, speaking, breathing, eye problems, or muscle weakness can be a sign of a life-threatening condition. side effects may include allergic reactions, neck and injection site pain, fatigue, and headache. don't take botox® if you have a skin infection. tell your doctor about your medical history, muscle or nerve conditions, and medications, including botulinum toxins, as these may increase the risk of serious side effects. the dose of botox® is not the same as other botulinum toxins. put the odds on your side. visit botoxchronicmigraine.com and talk to a headache specialist. red robin truly has a burger for everyone. even those of us who don't have a burger daddy. 24 burgers. a million reasons. ♪ red robin...yummm carver: "rubber soul." goren: it was a cover band. they toured colleges back in the '70s. eddie on piano, and that's bingham post on drums. and they kept in touch all these years? eames: there's no evidence of that. we checked eddie's old phone records and address books. no bingham. which made eddie a perfect bagman. he wasn't on anyone's radar. a guy he hadn't seen for over 30 years, and he got him to agree to break i don't know how many laws? they bonded for life on the road. i was in a singing group in college. 20 years later, any of those guys call, we pick up where we left off. ms. landau would've needed a private investigator to find mr. mercaldo. well, even if she could afford it, there's no record she paid for one. she was very good at mothering tommy. maybe his shirts weren't the only ones she was ironing. beth never mentioned other cops. you guys can't be right about her. she's a classy lady. eames: she was interested in you. she was worried about your health. she noticed how tired you were. i asked her what she knew about sleeping pills. she said they were bad for you... well, the right sleeping pill will keep you in bed, tommy... instead of... pacing in your room or... wandering the streets. she knew your condition. no, wrong! eames: you don't think she heard you banging on the wall, talking to yourself? goren: beth didn't want to tell you, because she liked you the way you were. she must've known. she ever ask you any favors. you know? like running down a license plate or finding an address? no. the only thing i ever helped her with was renting a car. her credit was bad. she needed something cheap, for cash. she say what she needed it for? overnight visits to her sister. do you know exactly where she went? because, uh... she doesn't have a sister. i don't know. just overnight. she did call me one time. she couldn't get her car started, it was late. and where'd you pick her up? just over the willis avenue bridge, in the bronx. nothing there but warehouses. and storage facilities. goren: beth in her former life... looks happy and prosperous. eames: wigs... blonde, redhead... no prescription. disguises? adult diapers. what is she disguising herself as? flashlights. maps... energy bars. high-speed film. binoculars. stakeout. that's why she needed to get a rental car. she didn't hire a p.i. she turned herself into one. .22 auto. membership card to a gun club in hoboken. she turned herself into wild bill hickok, too. bingham post filed a new application for release. included was a copy of a letter mr. post sent his wife earlier this week. "dear elizabeth, "this war has gone on for too long, "and benefited neither of us. "i've wronged you, "and i want the chance to make amends. i hope someday we'll even be able to dance to our old song." oh, i'm feeling nauseous. it apparently worked its charms on ms. landau. she indicated to the judge she won't oppose her husband's release. well, maybe because she can't access the money without him. and if he's willing to split it with her, it means that, uh... he can't get at it without her help. she has something he needs-- the bank account numbers or password-- something she took from eddie the night she killed him. yeah, he, uh... his address book was still on him, his-his wallet, house keys... no sheet music. would he bring sheet music for his gig at the piano bar? not sheet music, but he'd have a fake book. a list of songs, with their keys and start notes, to fake his way through any request. he wouldn't go anywhere without it. well, that bank information could've been in that book. and now beth's dangling it in front of her husband. you know, i think we need to be there for bingham and beth's reconciliation. any way to get him released into the custody of his wife? i'll talk to the judge. good to see you again. may i? there! not so bad, was it? you still like irises, i hope. yes, i still like irises. i'll put them in water. bing: i recognize the lamps. beth: one of the few things you didn't take when you walked out. now, come on. i learned my lesson. have you? why don't i pour us a glass? no. not now. it's for later. by the way, did you smell the stairwell on your way up? i got used to that smell in prison. oh, you could've walked out any time. you stayed in for spite. i did not choose this. you're right. how well do you think you'd do, with no resources, no credit, past your prime, with no marketable skills? that's all in the past. now we need each other. i don't need anything from you. i can get by on my own. but... you need me. yes, i do. you have something i want. what could i possibly have that you'd want? isn't that what you said when you left? i was wrong. what i wrote in that letter, i meant it. i hope that someday, we can be like we once were. the bridges to the past have been burned. there's nothing left, nothing. oh, she played him. she won't give it up. i spent six years in jail, but you won. ( knocking on door ) you expecting someone? eames: ms. landau, it's detectives goren and eames. can we please speak to you? we're sorry to bother you. we heard your husband was being released today. we wanted to make sure you were okay. speak of the devil, look who's here. is he harassing you? did he invite himself in? no, we decided it was time to end the war. and share the spoils? you going to tell her where you hid your money? elizabeth understands now there is no hidden money. i'm here to talk about reconciling. reconcile? nice. here to gloat. came to look at your little rabbit hutch here. you know, i bet your dressing room on fifth avenue is bigger than this whole place. neither one of us has had it easy in the last few years. beth had nothing. you stuck her with so much bad paper, that she couldn't even start fresh without a new identity, isn't that right, beth? i... i couldn't buy a cup of coffee on credit, thanks to him. i wasn't myself then. i was cruel. i don't know what i was thinking. goren: do you think that he really appreciates your dire circumstances-- the humiliation that he put you through? i doubt it. empathy was never his strong suit. elizabeth, that was then. eames: you know, you really should've had him come down to the department store. he would've gotten a kick watching you schlep those dresses back and forth. goren: it was the only job she could get, being a woman her age. i don't know how you got through each day. it must have been the thought of making bingham pay... and pay and pay. that's a nice vintage. but i guess those days are almost over, huh? i guess that it's time to... make a toast to new beginnings. you're splitting 15 mill. for the last time, there isn't any money. no, see, there is. and eddie was your courier. we verified he had a notebook on him the night he was killed, a fake book, a cheat sheet for hundreds of songs. i know what a fake book is. why, did eddie have one when you played in a band with him? we think that's where he kept the information on the bank in the caymans, the account numbers, the passwords. goren: eddie's book was missing when we found him. is this what you were planning on serving him? eames: we know beth's lawyers never found any offshore accounts in your name. so it's probably in eddie's name. and he can't access the money... without the information in that book. say when. a spiral notebook, huh, beth? you burned it? what did you do? it's a joke, right? tell me you copied the information. beth, stop screwing around! tell me you copied it! she didn't. she doesn't care about the money anymore. she made a new life for herself. you're the only one that's petrified about not having it. we have no way of getting that money now! don't you understand?! goren: i think she gets it. she's come a long way from holyoke. you know, they say that this should be served at room temperature. but it's best served cold... revenge? look at his face. isn't that enough shock, enough devastation to make it worth your while? i didn't do anything. didn't do anything? you burned $15 million. that's all the money i had. goren: you want him to grovel at your feet-- would that satisfy you? you know, satisfy your... your wounded heart? oh, you're feeling it, aren't you? the emptiness of it? revenge, you know, the whole buildup and then it lets you down, doesn't it? considering all the hours, the long nights spent stalking bing's lawyers and friends. staking out eddie's piano bar. finding the other victims... i didn't do that. wearing wigs and phony glasses and living off energy bars. we found your bat cave. it's very impressive. this item especially. diapers. couldn't leave your post without running the risk of missing something. so you sat there for hours in the clammy wetness, sustained by the thought of bingham squirming at the end of your hook. you know, i bet that this beth... would never think she was capable of that. i had to... look out for myself. or hitting bulls-eyes at the gun club week after week. or what you did to the neighbor. you know, all that mothering. that took real ice in your veins. i'm... i'm not that kind of person. beth is not that kind of person. but you... you knew that tommy was sick, and instead of getting him help, you made sure his shirts were starched and his belly was full, until that night when you drove him downtown. killed three people. you used his gun. you let him loose in the subway, and so what if a train hit him? didn't matter, because you didn't care! i'm not like that! i would care. you care now? you care about these three men? you care about them, and the lives that you consumed. and your own life. oh, god. you see now? come on, beth. come on, look at this. ( sobbing ) beth, look at her. come on. let me know if this woman... let me know if this decent woman... isn't dead. what would she tell me? what does she need to tell me? come on. i... i killed them. i'm... i'm sorry. i'm so sorry. eames: you're under arrest, beth. i don't know what became of me. look. look, what you've turned me into! you did this to me! you... you did this! you're going to have to come downtown and make a statement. i don't recognize her. that's not the woman i married. well, then you're even. i can't imagine you're the man she married either. so that's what 15 million bucks looks like. so that's what vengeance gets you. a mouthful of ashes.

Transcripts For FOXNEWSW Fox News Night With Shannon Bream 20180726

what he thinks. that leaked tape is really all about. hello and welcome to "fox news @ night." i'm shannon bream in washington. we begin with second of state mike pompeo's appearance on capitol hill. some lawmakers from both parties are exposing frustration with president trump's foreign policy and a lack of information about that recent trump-putman helsinki cemetery late today, his top diplomat tried to reassure them. chief congressional correspond mike emanuel has this report from capitol hill. >> i personally made clear to the russians there will be severe consequences for interfering in our democratic processes. >> pompeo told members of the senate foreign relations committee has been firm with moscow saying sections will be ease. >> there will be no relief of sanctions until russia returns control of the crimean peninsula to ukraine. >> pompeo was put in an awkward spot. >> what is it that causes the president purposely, purposely create distressed these institutions? you somehow disconnect the administration's activities from the president's actions. they are one and the same. >> i noticed you are not responding to what i'm saying. >> there were some testy moments with the panel's top democrat, new jersey senator bob menendez, on the trump-putin summit. >> senator, i am telling you that he had a conversation with vladimir putin i'm telling you what u.s. policy is today. >> senator, i understand the game you're playing. >> mr. secretary, with all due respect, i don't appreciate you characterizing my questions. my question is to get to the truth. we don't know what the truth is. >> menendez and pompeo sparred over north korea. >> did they agree to end the production and enrichment of plutonium? >> i would welcome the chance to respond to your questions if you let me finish. it's it would be most illuminating. >> is a simple yes or no. >> following the singapore summit with kim jong un, pompeo said the u.s. is pressing for results. >> we engaged in patient diplomacy. but we will not let this drag out to no end. i emphasized his position in the productive discussions i had with the vice chairman. >> pompeo highlighted how fresh from president trump and his and administration as lead tomato allies spending more and making the line stronger. >> last years and $14.4 billion in new spending was a 5.1% increase, the largest in a generation. eight allies will meet 2% this year and 18 are on track to do so. >> lawmakers argued there must be a prize when russia or others attacked the u.s. such as the election meddling. and there were appeals from senators for the trump administration to use all the sanctions available to teach moscow a lesson. shannon. >> shannon: all right, maka manuel, thank you. signs of a chainsaw tonight between the u.s. and europe, both sides hailing an agreement in principle to work towards zeo subsidies on nonautomotive products. what does that mean? garrett tenney has details. good evening. >> good to be with you. this is not the treaty of most folks were including to get today. after weeks of threaten each other with a full-blown trade war, the u.s. and european union today 180. >> this was a very big day for free and fair trade. very big day indeed. >> together in the rose garden, president trump and european commission president jean-claude juncker announced an agreement meant to stave off further hostilities. this deal is a big win for president trump because it includes just about everything he's been asking for. both sides agreed to work towards zero tariffs on goods outside the auto industry, no new tariffs as these negotiations play out, and to reassess the tariffs imposed over the past few months including those on steel and aluminum. and to reform the wto as well as significantly the e.u. agreed to buy more u.s. goods including soybeans and natural gas. >> when i was invited by the president to the white house, i had one intention. i had the intention to make a deal today. and we made a deal today. >> this pivot towards the u.s. by the e.u. comes a week after president trump called the european union block a photo of the u.s. and blasted germany at the nato summit over its multibillion-dollar gas deal with russia. the president striking a much different tone tonight, tweeting this picture of him and the eeo commissioner hugging with the caption "obviously the european union is represented by juncker and the united states, it is represented by yours truly, love each other." this new deal provides a bit of good news for america's farmers who have been hit by china's decision to buy soybeans and burgers from other countries amid its trade dispute with the u.s. that's why the white house is getting calls from republican lawmakers nervous that the president's strategy of using tariffs to get better trade deals may not end well. tonight commerce secretary wilbur ross at today's deal is proof that the strategy is working. >> i really think there would've been zero chance of this happening had it not been for the very firm tariff and trade policies the president put into effect. >> while the u.s. and e.u. are launching an executive working group to have met the agreement, the designs are also preparing new tariffs targeting billions of dollars in goods just in case these talks fell through. lots of love today, but don't forget we have one in the chamber for you. >> shannon: thank you. some republicans are hammering the trump administration on trade and russia. how does the republican senator from south carolina lindsey graham feel? thanks for taking a break to come cs. i want to play a little bit of what the president had to say in the rose garden with the president of the european commission. >> this will open markets for farmers and workers, increase investment, and lead to greater prosperity in both the united states and the european union. it will also make trade fairer and more reciprocal, my favorite word, reciprocal. >> shannon: what do you think? >> it could be a major breakthrough. maybe the biggest change between us and europe since the end of world war ii, if he can pull it off. when it comes to china, they are the biggest cheater. the tariffs are hurting, but we've got to experience and pain to background change. if the president can put a win on the board, then eventually canada and mexico, we turn our attention to china and it will be a home run. >> shannon: china targeting middle america. farmers, agriculture people. >> bmw is the largest plant in south carolina. they sell 81,000 cars to china. there is a 40% terrifying cars. we have to push through it. china cheats. i am willing to suffer through this but i want the europeans on our side. i want the canadians in mexico on our side against china. nec the first step toward a unified approach toward china beginning with europe. >> shannon: you think there will be short term pain for long-term gain. >> yes, if we don't change the way china does business, they can put going out of business, they can put bmw out of business. they can destroy the world economy because they steal and they cheat and they steal an actual property. if trump can put winds on the board with europe, get a better nafta deal and focus on china, then he can be hate historic president. >> shannon: let's talk about russia. here's what he said about crime crimea. >> the united stats will not recognize the annexation of crimea. we stand together with allies in the international community and our commitment to ukraine and its territorial integrity. >> shannon: has the administration meant tough enough on russia? they go they have been tougher on obama but the goal is to get russia to change their behavior. pompeo was an outstanding secretary of state. where they are doing with iran is a game-changer. pompeo called out the ayatollahs of enriching themselves of the expense of the iranian people. the president is kind of being like reagan towards the soviet union. iran is an evil empire. i think we can break the back of the regime, and the best way to do that is to help the people. when it comes to russia, i've got new sanctions, hard-hitting. it's not just enough to be tougher than obama. you need to get russia to quit doing what they are doing. if you believe dan coats, and i do, they are still trying to interfere in our elections in 2018. i'm coming up with sanctions against russia and i hope the president gets behind it. >> shannon: nine oh it's a bipartisan measure. >> yes. steel will see where he goes. it's important that the secretary was speaking directly to the iranian people. you think they are getting the message? the leadership is at odds with its own people and many thanks. >> for eight years, obama basically licked the boots of the ayatollah for a nuclear deal that proved to be very flawed. this president saw the ayatollah for who he is. he's a religious nazi. they have been trying to build a nuclear weapon. there's two groups who would use it if they could get it. isis, al qaeda, and the iranian regime. this president, with pompeo, sees through the smoke screen and they understand of the iranian regime is the enemy of the world, not just the iranian people. and with an average may impose sanctions and an information campaign informing the iranian people of how badly they are being treated, i think we can bring this regime down. if you could replace the iranian regime with something better, and almost anything would be better, it would be the biggest change in the mideast in my lifetime. probably be the biggest accomplishment any president could have since the end of the cold war. >> shannon: we know about the power vacuum when there isn't a backup plan after individual slave who've been dictators or theocrat in one way or another. let's talk about the supreme court nomination. judge kavanaugh is making his way through the hill. now there are meetings with democrats. here's what the lead democrat in the senate says about the nominee. >> if cavanaugh would have let nixon off the hook, what is he willing to do for president trump? alarm bells should be going off for anyone who believes and checks end. >> shannon: you have a republican colleague, senator rand paul, who says he's undecided on kavanaugh. you need every vote. >> there is no way in rand paul is going to be the deciding vote to stop kavanaugh from going to the court. he is the most qualified person the president could affect. he is an outstanding resume. he's been a judge for over a decade now. he's a conservative's conservative. it's a home run pick. there were will be more than a handful of democrats voting for him because they will lose their seat if they don't. rand paul is not going to be the deciding vote. he might vote no if democrats give them cover but there's no way he's going to deny kavanaugh's seat on the supreme court. he is too well-qualified. >> shannon: every vote will count. thank you. senator, great to have you. the president fighting back at his former attorney michael cohen after the leak of a taped conversation they had. it appeared to discuss buying the rightslayboy models story about an alleged affair with the president. ellison barber is tracking it. >> "wall street journal" has a report. are saying michael cohen secretly recorded chris cuomo earlier this year and that he talked about arranging the harsh payment to stormy daniels, telling cuomo i didn't on my own. "the wall street journal" breaking news related to the tapes we have already heard. citing a source familiar with the matter, the journal report cohen created a shell company in september 2016 with the intention of buying the rights to karen mcdougal story. mcdougall and daniel said they had affairs with trump. federal investigators seized 12 audio items when they raided michael cohen's office in april. the public recording has led to a number of questions in a number of responses. today twitter responses from the president, his personal lawyer, and cohen's lawyer. in the oval office, a cnn correspondent tried to ask about cohen and the tape. >> mr. president . did michael cohen betray you? >> why is vladimir putin not accepting your invitation. >> the president did not answer her question. according to cnn, the white house banned her from an open press event because of those questions. cnn says "collins was told by white house deputy chief of staff for communications bill shine and press secretary sarah sanders that her questions were inappropriate. they were not. just because the white house was uncomfortable with the question doesn't mean the question isn't relevant and shouldn't be asked." white house correspondents association says the administration's behavior here is inappropriate, wrongheaded, and weak and it cannot stand. the white house has not backing down. in a statement, sander said the reporter refused to leave when asked and "our staff informed her she wasn't welcome to participate in the next event but made clear that any other journalists from her network could attend." as for fox news, we stand with kaitlyn collins and cnn. fox news president jay wallace said "we stand in strong solidarity with cnn for the right to full access for our journalists as part of a free and unfettered press." >> shannon: interesting day at the white house. thank you. for live reaction to all of the stories, fox news contributor and former governor of arkansas, mike huckabee. good to have you with us. i find it interesting that even critics of the president saying this recording tape it is necessarily show any wrong or criminal doing. lanny davis, politico said this. lanny davis representing michael cohen. linked to the clintons in the '90s. they say davis, who served as special special counsel to then-president bill clinton in the late 1990s argued wednesday that while the tape offers little in terms of evidence of a crime, it gets to the lies and truth of the president and his team. governor, why is it out there? >> when i first heard they were going to be tapes, i thought oh, boy. then when i heard the tapes, my reaction was where is geraldo and al capone's vault. there is nothing in there. it was such a letdown, if you will, because the story had been hyped something absolutely mind-boggling. it wasn't. i don't think it did any damage to the president and especially if you listen to people who are objective, which are very few when it comes of this president, but like professor alan dershowitz who say there was nothing there that was criminal. nothing impeachable, this was a conversation, and it shouldn't of been recorded. it was. it was played. nothing came from it. >> shannon: they seem to be trying to signal that cohen has more tapes, there may be more to come. in "the new york times," it says lanny davis told the times that mr. cohen released the tape because he's on a new path and it's a reset button to tell the truth and let the chips fall where they may. is that supposed to be a warning to the president? >> it may be intended that way. i think everyone of us need to be more concerned about the fact that god is recording every word we say and we will be accountable for it. then if a lawyer happens to record certain conversations. it's privileged information, and i think you're going to have a hard time convincing judges if they look at this from a legal standpoint that this is somehow okay for a lawyer to release information that was considered to be private and never, ever intended for a public audience. >> shannon: i assume somebody in the government is reading texts and emails. you have to watch everything you say. someone is monitoring it. i want to talk to you about another case. the idea of imprisoning a u.s. pastor who is lived in turkey for decades and has led a congregation there. he's being accused by the administration of all kinds of wrongdoing there. all of which he vehemently denies. here's his daughter speaking out yesterday. >> my father is dealing with a lot of anxiety and depression, and he has been permanently changed by this expense. even with this ordeal is over, he will never be the same person he was. that being said, i cannot tell you how proud i am of my father and what an example of christ he continues to be. >> shannon: we got word he'd been moved out of jail into home confinement or at least allowed to go home. this trial is not going away. what do you make of it? >> he has until october on home arrest and he goes to trial. he may get out. let's hope he does. this is a totally trumped up charge by the turks. we've got to understand erdogan is not a guy we can trust. i'm worried he is in nato. i'm word we have to deal with him as if he's a friend, and he's not. this imprisonment has been called into question thankfully by the president, the vice president, and the secretary of state. they have pushed hard, and if were not for them, pastor brunson would still be in a very pathetic prince in. thank god we have some administration officials at the highest levels who care about people who are being politically imprisoned. >> shannon: it's great is a bipartisan agreement in the senate to push back on turkey. governor, always great to see you. thank you, sir. >> thank you. good to be with you. >> shannon: articles of impeachment drafted and introduced against deputy attorney general rod rosenstein. catherine herridge joins us with details. >> we are tired of the justice department giving us the finger and not giving us the information. >> shannon: will be joined by house freedom caucus member ron desantis to get his take when we return. with carnation breakfast essentials. it has protein plus vitamins and minerals to help kids be their best. carnation breakfast essentials. when you bundle your auto and hwith esurance, you could save with their single deductible. so if you confused the brake with the gas, or if your lamp post jumped out of nowhere, or if you forgot your bike was on the roof rack, you only pay one deductible -instead of two- for a claim involving both your auto and home. and when you save that much, it's almost like it... never even happened. that's auto and home insurance for the modern world. esurance. an allstate company. click or call. (voowners always smiling?ck because they've chosen the industry leader. subaru outback holds its value better than any other vehicle in its class, according to alg. better than rav4. better than grand cherokee. better than edge. make every adventure a happy one with subaru outback. get 0% apr financing on the 2018 subaru outback. >> shannon: house republicans introducing articles of impeachment against deputy attorney general rod rosenstein. chief intelligence correspondent catherine herridge has details. >> two republican lawmakers release the articles of impeachment tonight, calling out the deputy attorney general rod rosenstein. alleging he has a conflict of interest. these heavily redacted documents released over the weekend show rosenstein side at least the last surveillance warrant renewal in june 2017. trumped campaign aide page. it reads "his contact and authorizing the fisa surveillance and issuing the joint congressional investigation makes him a fact witness." deputy attorney general rosenstein's failure to recuse himself in light of this inherent conflict of interest and failure to recommend the appointment of a second special counsel constitute dereliction of duty." the congressman explained. >> not only has venus been ignored but information has been hidden, and the efforts have been stonewalled. for us it's all about transparency. >> we are tired of the justice department giving us the finger and not giving us the information we are entitled to do to do our constitutional duty. >> senior officials met with republicans from the house oversight and judiciary committees for two hours earlier today. after the meeting, congressman meadow says there was agreement that fbi agent peter strzok avoided too many questions during his public testimony earlier this month. and that strzok can't answer this line of questioning from cosman jim jordan about the opposition research firm behind the dossier, fusion gps, and its cofounder glenn simpson. >> this is the frustration every single member of the committee feels. agent strzok one answer fundamental questions like the guy he references in an email, won't tell me who they are. this is unbelievable. >> >> sir, it's as frustrating o me as it is to you. >> the closed-door depositions from strzok and fbi lawyer lisa page identified records previously unknown to lawmakers. about at least one filed document to the fbi's efforts to verify the trump dossier. those records will not be provided and the issue is timing. did the fbi try to verify the allegations before the dossier was used as evidence in the surveillance warrant application? heading into the meeting, justice department officials indicated there they believe they have complied with the majority of congressional subpoenas on the articles of impeachment tonight there is noe response. >> shannon: catherine herridge, thank you very much. will the resolution to impeach rosenstein be considered to my brother house breaks? let's talk to republican commerce men from florida ron desantis who sits on the house oversight committee. good to have you with us. let's talk about this. unless it comes up as a privilege resolution tomorrow, it's going to go away. you go home. is it a p.r. stunt? >> i don't think so. we've been doing this round and round for months and months and months, and i've been saying for months and months if you want to change their behavior, you have to impose a sanction on them. i think the easiest thing would've been to hold rosenstein in contempt of congress and also hold potentially people in the fbi. when peter strzok is avoiding the questions, he is doing it at the direction of people in the fbi. these are some basic questions that the american people have the right to do. so you need to have a sanction and i think the reason why mark and jim filed it is because, although it was not filed as a privilege, it could be at some point in the future. so i think they are laying down a marker, letting justice know that congress means business, and then hopefully be able to do something short of that to get what we want. it would be much easier for everyone to get the documents, but at some point congress has to stand up for itself. we have not done a good job -- some of us have wanted to be aggressive with the institution as a whole has been very weak not just with this but all the way back to the irs scandal when we tried to will john cost can accountable and didn't have enough votes to do it. >> shannon: the doj has repeatedly said in recent months and weeks that they have been more forthcoming than ever in the past and history, that they've gone beyond guardrails in the past with respect what information they can give you. here is a deputy attorney general a few weeks ago talking about this idea that he could potentially be impeached. >> i can tell you the people who have been making threats privately and publicly against me for quite some time. i think they should understand by now the department of justice is not going to be extorted. >> shannon: they say they are turning over information. is it quantity or quality? >> why haven't they turned over the information about how cross fire hurricane started, the trump-rush occlusion case that was opened by peter strzok who said they were going to stop trump and that you needed an insurance policy. very simple to do that. why am the given us the answers about whether the fbi or obama justice department did anything to induce any type of surveillance or spying on trump's campaign prior to july 31, 2016. those are very simple questions. they either did something or they didn't, and yet they will not do that. i think with their masters of his producing a lot of documents that really aren't what we are looking for, and it's kind of a chewbacca defense. look over here. we are giving you this. what we want is very easy to produce. they just continue to refuse to produce it. talk about guardrails. peter strzok went over guardrails when he said that he was going to stop trump from being president. these guys went over guardrails and how they conducted the investigation, and the american people need the truth about it. >> shannon: seems like from what we've heard of some of your fellow members of lisa page, she gave them more guidance and information that kind of cleared some things up, pointed you in another direction. was it a fruitful exercise? >> there is now an inquiry about additional facts involving the dossier and how that dossier ended up in the fisa applicatio application. it was a critical component. yes, there are redactions, but that was kind of front and center. they rolled it out as the reason why. if there was stronger evidence, you would've led with the stronger evidence. the dossier was there. i think is going to be follow-up from there, but then also i think peter strzok is going to be brought back in. lisa page was very honest about the meaning of the text messages. strzok acted like the meaning of "is" wasn't is. he was giving outlandish explanations. even the inspector general said this guy wasn't credible. could be an interesting contrast. >> shannon: we will stay tuned tuned. let us know how you do over recess. a lot to get down here in washington, but i know folks at home want to bend your ear. thank you. a gruesome attack in california. an illegal immigrant allegedly attacked his wife with a chainsaw. that alleged attacker is arrested and deported, we are told, 11 times. trace has the story. surprise ruling on gun rights by the liberal ninth circuit court. details coming up in our western roundup. 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chainsaw attack could via flash point in the immigration debate. trace gallagher has details tonight. good evening. >> when it comes to the debate about sanctuary cities in california's immigration policies, this might be the highest profile case since the death of kate steinle a few years ago. the latest attack happened in whittier, 20 miles from downtown los angeles. 32-year-old alejandro alvarez is accused of attacking and badly wounding his wife with a chainsaw. spraying her blood all over himself and his three young boys. aside from the gruesome violence, what makes this case notable is that since 2005, alvarez had been deported 11 times. in his criminal record goes well beyond deportation, including convictions for drunk driving and drug possession. immigration advocates fear this type of sensational case could be used as fodder to boost the president's immigration policies and to increase the criticism of california for sheltering illegal immigrants, including criminal aliens. they say alvarez is no more representative of illegal immigrants than the las vegas shooter is representative of white men, but groups that oppose illegal immigration say we have plenty of homegrown criminals without foreign nationals joining in. whether more illegal immigration leads to higher crime has been widely studied, hotly debated, and largely inconclusive. americans believe it to be true. a2017 gallup poll showed nearly half of those polled think immigration does lead to higher crime. which is why building a wall along the southern border continues to gain momentum across the country. on top of that, new numbers from judicial watch show that in just the past several weeks, hundreds of illegal immigrants have been arrested for violent crimes from a brutal rate by a lift driver in northern california to human smuggling and child endangerment in new mexico and texas. finally, immigration and customs enforcement or i.c.e. has just filed a detainer against an illegal immigrant in florida accused of shooting and killing a police officer. to make matters worse, over the past ten years, the haitian immigrant had been arrested numerous times, but local police never notified federal authorities. >> shannon: trace gallagher live in los angeles. thank you. it is hot as blazes in california. portions of yosemite national park forced to close for the first time in 30 years, as wildfires wreak havoc across the region. more than 3400 firefighters are working to contain the blaze. one firefighter has already been killed near yosemite. seven others have been injured. montana governor and potential 2020 democratic presidential candidate steve bullet claimed a new irs policy is basically a slight at social welfare groups and unions. they run political ads using information from the irs to target political enemies. the irs is making it more difficult by not requiring many tax-exempt groups to disclose their major donors. it says allowing donors to cover their tracks. a big victory for gun rights coming from an unexpected place. the left-leaning ninth circuit court of appeals ruling that the second amendment rules you can openly carry a gun in public. while we have yet to learn the identity of the megamillion jackpot winner, we know the winning ticket was sold in san jose, california. the retailer in san jose got a million dollar bonus for selling the ticket. the winner has one year to claim his or her winnings. major issues, california. politicians trying to tackle immigration, homelessness, poverty, crime, plastic straws. san francisco is the latest city banning -- passing legislation to ban plastic drinking straws. the panel is here to discuss the pros and cons. leslie marshall and larry o'connor get their say when we return. insurance that won't replace the full value of your new car? you'd be better off throwing your money right into the harbor. i'm gonna regret that. with liberty mutual new car replacement we'll replace the full value of your car. ♪ liberty. liberty. liberty. liberty ♪ for great deals on great gear. like savings of 25 to 40% on select men's and ladies' clothing. and save 30% on select towables. bass pro shops and cabela's- your adventure starts here. >> shannon: facing criticism over homelessness, poverty, drug use and illegal immigration, to these on the west coast are taking aim at plastic straws. sanford is go is the latest city to ban all so-called single-use plastics. seattle was the first major city to ban these things. santa barbara has come to the strictest prohibition in the country. fines for violators and possible jail time. tonight's panel. marshall and radio host larry o'connor. welcome to you both. leslie, people going to jail over plastic straws question like this is not the onion. this is for real. >> it's not the onion. it is for real. nobody's going to go to jail. you have me on tape saying that. i think with they are trying to do is emphasize how stringent the city of santa barbara is. there are two problems with this. i like what seattle did. imposed a fine of $250, as you said, but also they have exempted the disabled. there are some people who need to drink from straws. i think santa barbara needs a look at that again and we need to have look at santa barbara. the marine life is being heard by plastic straws. marine life is the way a lot of people get their livelihood and tourists come to santa barbara subject around the marina life. >> shannon: larry, i will add this from san francisco supervisor. "san francisco has been a pioneer of environmental change and it's time to find alternatives to that plastics choking our ecosystems." >> i am tempted to call this a strawman argument. think about it. last week here, this same group of three amazing people on fox news, we were talking about how the city of san francisco wants to give illegal immigrants the right to vote. they want to get people who are in this country illegally the right to vote but they don't want us to be able to use a straw. they want to put a waitress in jail for giving my kid a bendy straw with a soda. it's ridiculous and it tells you the priorities of people in california right now. dare i say i think it's the last straw for many people. >> shannon: i'm going to stop you. let me read you something from commentary magazine.com. the combination of technocratic arrogance insularity and condescension would be irksome enough power social engineers are not done inconveniencing you. instead of disposable plastic straws america's americans aree asked to switch to paper straws. >> larry can look into a future of biodegradable straws that don't fall apart. this is not the only issue in california. santa barbara is not in san francisco. >> san francisco just voted for this. >> i know but santa barbara is saying we're going to give you jail time. it's not going to happen. the environment is a huge issue in california. you have to look at the things we've done not only with the ocean but also with our air quality. if you look at pictures of smog, there's been a vast improvement. we can multitask. i know i do. you can do it in or outside california but in california although we care about health care and immigration, we do care very much about the environment. "national geographic," our marine life and oceans convey contributes to pollution. that contributes to us in our bodies because we eat that fish. >> shannon: let me read you something. last october scientists that the center for environmental research in germany said ten rivers, two in africa and the rest of asia, discharge 90% of all plastic marine debris. 1.5 metric tons a year. larry, they are saying that the problem is africa and asia. >> i know. i've been to santa barbara. there's not a whole lot of littering. california is full of so many virtuous people like leslie that they will never letter to pollute their beautiful coast. why do they need this lawson's californians are so superior to the rest of us? it is virtue signaling. it's a bunch of elected officials trying to tell their constituents how much they care. it does tell you their priorities. just now, you had a story about an illegal immigrant in whittier where my kid lived, whittier, california, who took a chainsaw to his wife. >> shannon: allegedly. >> it's more serious. maybe elected official should be looking at that instead of worrying with what we drink. >> shannon: will not come to a consensus but leslie, he gave you a lot of nice complement there. we will leave it at that and see you next week. thank you. up next, a discovery. scientists believe they may have found liquid water on mars. where there is water, there is often life. that story is m next. thanks to their fast approval process, when it came time to buy a new car, we got everything we needed to transport my wife's little bundle of joy... ...who i just adore. navy federal credit union, our members are the mission. too hot to work? nah. this is the gator xuv835. with game-changing heat and air, it's never too anything for anything. come hok., babe. nasty nighttime heartburn? try new alka-seltzer pm gummies. the only fast, powerful heartburn relief plus melatonin so you can fall asleep quickly. ♪ oh, what a relief it is! and butch.aura. and tank. and tiny. and this is laura's mobile dog grooming palace. laura can clean up a retriever that rolled in foxtails, but she's not much on "articles of organization." articles of what? so, she turned to legalzoom. they helped me out. she means we helped with her llc, trademark, and a lot of other legal stuff that's a part of running a business. so laura can get back to the dogs. would you sit still? this is laura's mobile dog grooming palace and this is where life meets legal. >> shannon: is their life on mars or could there have been? there is a new element. that element is liquid water. kristin fisher is here with details. >> we are talking about a lake of liquid water on mars right now. if the findings are confirmed, this is a discovery so many scientists have been waiting for. a specific place to target in their search for microbial alien life. the discovery was made not by nasa but by the italian space agency. using one of the oldest spacecraft still operational in orbit around mars. the mars express. they used ice penetrating radar to balance radio waves off the surface of mars and when they got to the south ball, they noticed that her radar profile was similar to lakes underneath glaciers on earth. researchers spent years digging through the data and now in a study published today, they say they are convinced they found a roughly 12 mile-long lake underneath the polar ice cap. >> we have found liquid water on the subsurface of mars. >> liquid water is a critical distinction. we have known about ice on larson's 2008 when nasa's lander found it and we've known about seasonal running water since 2011. thanks to nasa's mars reconnaissance orbiter. a standing, stable body of water, that is something else entirely. >> the discoveries have mostly been there is water ice, there is ice here, i stare. maybe there is transcendent droplets forming on the legs of robotic landers are frost on rocks. this is the mother load, real liquid water in large amounts underneath the south polar ice cap of mars. >> that would be a game-changer in the search for life on mars because it's long been believed that where there is water, there is life. now the challenge is getting there, getting a rover they control down deep inside the polar ice cap to see what kind of life could potentially be locked inside the lake. >> shannon: fascinating. kristin fisher, thank you very much. stay with us. our midnight euro is a real lifesaver g) gentlemen, i have just received word! the louisiana purchase, is complete! instant purchase notifications from capital one. so you won't miss a purchase large, small, or very large. technology this helpful...could make history. what's in your wallet? the winter of '77.uring i first met james in 5th grade. we got married after college. and had twin boys. but then one night, a truck didn't stop. but thanks to our forester, neither did our story. and that's why we'll always drive a subaru. and i don't add up the years. but what i do count on is boost®. delicious boost® high protein nuritional drink now has 33% more protein, along with 26 essential vitamins and minerals boost® high protein. be up for life. at outback, there's one way to cook a steak. perfectly. and three ways for perfect shrimp. introducing steak & shrimp, starting at $15.99. whether you choose bbq, garlic butter or sweet & tangy shrimp, it'll be perfect. hurry in! steak & shrimp ends soon. well, esurance makes it simple and affordable. in fact, drivers who switched from geico to esurance saved an average of $412. that's auto and home insurance for the modern world. esurance. an allstate company. click or call. paying too much for insurance that isn't the right fit? well, esurance makes finding the right coverage easy. in fact, drivers who switched from geico to esurance saved an average of $412. that's auto and home insurance for the modern world. esurance. an allstate company. click or call. >> shannon: a rookie police officer is being hailed as a hero for saving a man's life, look at what he did. >> move, move! >> shannon: that is the patrolman bought a camera, he noticed a man on the tracks, he ran toward the track yelling for the men to get off the tracks trying to motion at the train to stop in time. as you can see there was no time to clear, the man gets off the track. we were told the unidentified man was very distraught and taken to the hospital for observation. he's tonight's midnight hero. good for him. most-watched, most trusted and most grateful you spent the evening with us. good night for now from washington, i'm shannon bream. ♪ >> tucker: good evening and welcome to "tucker carlson tonight." last night a secretly recorded conversation between president trump and his now estranged attorney michaelen cohen aired on television. much of the dialogue was garbled but the thrust seemed to be that one of the men on the call had a personal history consistent with what you might expect from a long time atlantic city casino owner, consorting with loose women. viewers had assumed he was a conventional midwestern evangelical, this one must've been a total shock. for everyone else it was not. for the professional hysterics

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