Ill take the opportunity of session. To begin this im not going to spend a lot of time on introductions, but very briefly, i have been with us from brookings, and this is a real opportunity because my co panelist, interviewee, im not sure what to call him, he has a remarkable diversity of experience with 702. I actually met matt way back when he was working on guantanamo issues once of upon a time, but subsequent to that he became general counsel at nsa and went from there to run the National Counterterrorism center which is fundamentally analytical but draws on a lot of sources of intelligence including, as i think youll hear of 702 material. So, let me start by just asking you, on a scale of one to ten, 702ortant is 702 the u. S. Counterterrorism missions and other National Security interests, and what other interests. If i can channel the movie spinal tap, i will say 11, for those of you who have seen the movie. On a scale of one to ten, in all seriousness, its very important. I go back to introductions for second. Its great to be here with you and weve had a lot of conversations about these issues over the years although as been mentioned, we didnt really caucus before. Im a little nervous about what they will throw at me. Well just have a conversation and it will be fine, dont worry about it. I did move around a bit in government and i had diverse experiences with 702. The truth is, i just kept moving every couple years. Anytime there was an issue or problem i would just let somebody after me deal with it or other things or other difficult issues that have come up. There are issues and we will talk about those. Back to your question, at the Counterterrorism Center i was the recipient of 702 information as we called it and having worked on it from the perspective of 2008 and getting the authority, it was oddly gratifying to sit in a room of analysts and they would say, we know from 702 information, x, y, and z. I thought its not very often that analysts would actually talk about the authority by which we knew a particular fact, but there was something about 702 that was special. It was called out but it was also often the case because of special handling around it that would be part of the intelligence information that her analyst were getting, or maybe they knew i worked on it and they were sucking up to me. That was also possible. The reality was, the statistics that are out there from a major can contributor to the daily brief, i dont know if theres a more important source of information than the authority providing a source of information and 702. Its hard to overstate. Ok, so lets break it down now, the reason the program is so important, presumably is that it solves a problem that otherwise doesnt have a solution, and so we always talk about seven or two as though its something that exists out there. Its actually only existed in current form since 2008, temporarily it existed in 2007, so whats the problem that 702 is the solution too . Its a couple problems that it solves, it is important to understand 702, to do a little bit of historical discussion in the prior presentation talked a little bit about this as well, but the basic problem has to do with the nature of pfizer generally, the statute from that teen 78 and the fact that like in a lot of context, the law that was passed in 1978 didnt keep up with changes in technology so the way pfizer works is the scope of what you can do is defined by electronic surveillance. Thats what they can authorize in terms of electronic surveillance and with that definition, it was adopted in 1978 where most of Long Distance communications were carried by radiocommunication so theres lots of technologybased language to define the scope. That changed fundamentally in the 90s and 2000s so that most of those medications were carried over fiberoptic cable or a wire as the definition uses uses, the term wire, and that meant instead of collecting information with output where we were targeting nonus persons who were not in the United States, who typically dont have for the member rights, instead of doing that without probable cause we were having to go to the court to get probable cause. That was on an individual basis. Change in technology met people who didnt have Fourth Amendment rights were getting Fourth Amendment writes it was an anonymous resource drain. There were thousands of hours devoted to getting probable cause on it nonus person in yemen who is generally communicating with other nonus people in yemen but we were developing packages to peru that they were form power. That was a resource drain but it also didnt make much sense because they didnt have for the member rights and we thought it made sense to have a more agile means of obtaining their medications when we needed to use a usbased service provider. We needed a mechanism to compel their compliance and protect them legally when they provided that information to government. Thats a long answer but thats the nature of the problem. Ok so i want to shorten it. I want to sort of isolate what it is, because we will get to the problem in a minute of what happens if you turn off 702. I want to focus on what problem you are solving with it that you then stop solving if you say on december 31 it ceases to be law or january 31. As i understand what you said, it is that large numbers of lawful intelligence targets overseas, communicating with other terrorists and non terrorists lawful surveillance targets overseas and these medications are routing to the United States but they would suddenly have to go through conventional and thus be subject to wildly increased standards of a sort that weve never decided as a society that we want to give to aliens beyond the shores of the United States. Is that fair . Thats fair. What kind of numbers are we talking about . So the specific numbers are classified. Lets use big round, i think the government says theres a few thousand conventional once. Year. I forget the exact number in the United States. Ballpark, where is the decimal point were talking about how many overseas targets might suddenly become subject to pfizer if you turned off 702 . So to assume you are able to demonstrate probable cause. Lets assume you could do it. Lets assume there are x number of people overseas that we now surveilled under 702 without an individual probable cause showing and those are the universe of people you actually want to target for surveillance and now you have to do it under fisa which were doing that 2000 a year or so. What are we talking about . The number is around 2000. That is specifically reported by the government. I dont know if that number, the broader number is public. I think theres somewhere in the hundred thousand. So its orders of magnitude. So factor of 50 or greater. In your rough guess, how many of those people could you get a conventional fisa against. Theres two dimensions to that problem. Could you establish probable cause and could you amass the resources to go through those steps. Resource question aside, just a gut feel about the numbers that would meet the standard would certainly be under 50 , and maybe under 20 . Ok so let me just summarize this. Hugely important program, 11 on a scale of one to ten, major contributor to the president s daily brief, and if you turn it off you have to scale by a factor of 50 the number of people you are subjecting to conventional fisa, and for more than half of them you couldnt do it, and for the half that you could do, you are dealing with and a intense resource allocation. Is that a fair summary . Thats right. May be insurmountable ok, so before we turn to the politics of this, im just trying to establish the scale of the problem, that the political system is about to confront. What did we do before 2007 . This is a new solution to this problem. The problem actually predates 702. What were we doing and how are we handling it before we had the solution that we have and why couldnt we just go back to that . You go back, when i talked about before, you can go back 20 years and the problem was on the scale because of the Technology Issue i described. To this person a and box one and this a in botswana person b in yemen were not communicating through a server in the United States. Thats right, exactly. Thats still true for a lot of those same individuals. The fact is many of those communications do not pass to the United States or through a u. S. Based service provider. The problem didnt exist to the same degree if you go back 20 years or ten years. Then of course you have the terrorist surveillance program. 2001 through 2007 when the government announced in any electronic surveillance that have been conducted under what was revealed under the terrace reveal program was now being conducted under the fisa court. You had a regime based on article two authorities and a controversial legal interpretation. So if you go back that far, thats what you go back to, Legal Authority so, now if you were to turn off 702 and say ok you gotta go cover the same individuals under probable cause, we go back to the brute force efforts that were undertaken when i was there to try to cover as many as those individuals, simply with the title i fisa and then the same problem we just talked about in terms of resources and establishing probable cause. In the absence of 702 you basically have a robust and maybe unsustainable assertion to do it on the president s own authority or you do it person by person under conventional fisa. Correct. All right. Lets talk about politics. Politics of reauthorization. Its interesting, the prior presentation one of the questions i think at the end with what was the vote or in 2012, i was sitting sitting here and they googled it and it was i think this it was like 73 votes for reauthorization in 2012. Similar proportion in the house. At least by the time it was december 20 looming deadline of january 1, it was bipartisan support for reauthorization in 2012. And going back to 2012, i was at nctc at the time. We were very closely following this issue, and this was at a time where there was, the tea party sort of movement had begun in congress. We had started to see a change from when i worked on the legislation in 2008 where you had a sort of libertarian streak in the Republican Party that was kind of joined with sort of critics on the left in privacy, groups on the left to question some of this, right . So that had started to happen in 2012. Obviously, those dynamics are still play today. But i do think there does feel like theres something this change from 2012 thats going to make this harder. Ok. So before we turn to the unique particularities of the Current Situation of which i can think of that, at least three, lets just talk about the general constellation of forces here. Youve traditionally had a core center, right of center, and left of Center Support for visa authorities, and you had a dissenting left Civil Liberties community, and you had a more marginal libertarian right objection. My sense, generally speaking, is that even before this year, that dissent on the right has grown in strength. You know, im interested in your sense of when you think about the politics of, you know, who were the opponents of 702 . How much do you think of sort of conventional left opponents, the sort of aclu, and how much do you think of it as a sort of russian rebellion tea party thing . Let me answer the question by going back to 2008. If you think about the law as it was passed in, first protect america act and then 702 in 2008, that was passed at a time that you had a very unpopular president , republican president , president bush. Democrats controlling both houses of congress. And as a result, i think, the law that was passed represented a pretty thoughtful balance of the various viewpoints on how to protect the country and protect privacy and other basic challenge of building a statute that gave the Intelligence Community the agility, speed to collect vital intelligence while building in a number of safeguards involving the fisa court being the procedures, the minimization procedures, Fourth Amendment. The fisa court has authority over all those. The oversight mechanisms builtin. All things we learned about an hour ago were all part of this hardfought compromise where these groups, this is not like a law that was shoved down the throat by one party over the other, given the nature of the executive branch in congress. To me that thats important as you think about the current state of play. And i guess one point to make i think in response is that itll think, my own sense is when to talk about the critics, i dont think there really is much real debate about the fundamentals of 702. Maybe im wrong, maybe im naive or hopeful, but the value of it and the sort of Core Principles of how it works, i dont think, i think theres general support for that. Theres obviously some critics of the law on some of, on some aspects of it but i think those aspects are on the fringes of how its use as opposed to the the core of not requiring the government to get probable establish probable cause for nonu. S. Persons overseas to collect foreign intelligence. That seems to me to be probably pretty broad excepted. I agree with that with the following caveat, that a think you can accept that broad principle and then caveat the broad principle so often and so neurotically that you end up eroding the underlying principle itself, and creating effectively a lot of the workload burden that the statute was designed to eliminate. But ok, if we except that there is a core reservoir of support here that is strong, whats changed . You just said you think this year is going to be harder than 2012. I share that, and also note that the aggregate legislative progress that weve seen toward reauthorization so far has been something close to zero. Right. And moreover, theres another intervening event that i think is disturbing, which is the protect america act 215 debate which different subject but also kind of flows out of the snowden revelation. And that bill was ferociously contested. The program was actually allowed to lapse for a while. You know, i dont think the legislative process associated with that was a harbinger of anything attractive with respect to whats likely to happen to 702. Im interested what you see as the current legislative politics that are different from the politics four or five years ago. Ill take a shot of that. Its not really, you are closer and better at knowing the politics i think that i am, ben in some ways. I read the papers and try to step on this but but i wouldnt hold myself out as an expert on the Political Landscape on this. My own sense is, theres some big things that changed since 2012. 2012 was harder than 2008 which in a way with sort of way was sort of odd with the libertarian sort of streak in congress that had some critics on the right which we did nothing 2008. The support of the rent was kind of a given and going into 2008. So 2012 was harder. Then the big things are snowden, 2013. We are still, if i asked, im sure people will not raise hands, but how many people not raise hands, but how many people believe that nsa is tapping directly into the central servers of several u. S. Based internet providers. I suspect many people would say yes, thats true. Because that was the lead story in the Washington Post shortly after the snowden revelation. Turns out not to be true. Not true at all and really notably not true at the time that article was written. The post to this day has never run a correction about it. And they got a Pulitzer Prize for it. I find that to be pretty problematic. I knew what he read it, thats not true. In fact, we had a very open public congressional debate when we established the authority to be able to do this, and it wasnt nsa tapping drug into the central servers of google and yahoo but it was on this life that it was snowden, a training slide apparently. So snowden, dont get me started on this obviously. So we got snowden. Thank you for pulling me back from the brink. So we have snowden. In some ways a lot of the i think has run its course is my sense. Look, you brought it the 215 debate. That was the most controversial aspect of what snowden revealed, and thats been largely addressed. I feel like much of that is sort of dissipating. But still its it still informs the current climate i think. But then you are not going to say President Trump so i will say President Trump. I was going to say it. You know, today, the tweet from the president , the real story is unmasking surveillance of u. S. Persons come something persons, something to that effect. Thats the real story. And that is something that we just havent seen before, that we have what in particular . So what is, right, such a number of different facets of the same thing but its a strong message coming out of the white house of distrust of the Intelligence Community aunt. That comes up, in particular comes out in comments about surveillance. You know, going back to general distrust around the russian story. That goes back to preinauguration, to the false statements about, from the president , that he was subject to surveillance by president obama, to comments by kevin nunes about potentially illegal unmasking. So this creates an atmosphere of distrust, what the Intelligence Community does, and you see, it seems to me people who know better i think on the right embracing those views to support the political position that the president has taken. That is the best i can say. Down. s break that you raise to issues is the messe useident alleging illegal of surveillance authorities and the illegal unmasking of people. Traditionally we have relied on the executive branch not merely not to engage in illegal wiretapping with either however many spaces, however between wire and tapping. Not merely enough to engage in it but to be the explainer of the legality of the intelligence communities behavior. And i think it does create a very difficult environment when the president is saying things that we would regard as people like me anyway, would regard as wildly irresponsible if, say, the aclu said then, which by the way the aclu wouldnt. And so i dont really understand