Defendant, even though it now appears that faa fisa amendment acts were used in criminal prosecutions. There was a great story about this by Charlie Savage about the fact that the solicitor general, when he argued to the Supreme Court, represented to the court that fisa amendments act requires removal defendants to receive notice when the government is prosecuting them on the basis of evidence derived from the fisa amendments act. It turns out not to have been the Justice Departments policy. Their policy was to deny defendants notice, even in circumstances in which they were entitled to it under the statute and constitution. They have changed that policy, which is a good. It seems there is a disconnect between the Justice Department and some of the security agencies about what has to be released and what can be done to ensure what you have said. That data needs to be revealed to the defense. I do not think there is a disconnect between the department of justice and the intelligence agencies. The department of justice makes the decision as to what is disclosed and what is not disclosed. There was never a case in which evidence we are talking about only fisa amendment acts. There has never been a case in which evidence obtained from the fisa amendment acts the department of justice has made determination of when they are going to notify. That is their call. It is up to the department of justice. Does the department of justice have to work with the agencies in determining what data was used in the prosecution . They know. It is their prosecution. Marc, did you want to comment . There was a description of the use of fisa evidence in investigations. I just want to put in to push that. Is my recollection correct . He was saying there were circumstances where the government did not want the defense counsel to have access to fisa derived information and there were procedures within the act to provide affidavits to the courts in support of the type of information that had been obtained to establish whatever Legal Standard was necessary to go forward. Is that correct . There is a difference between the issue of providing notice and what happens after that. It is true throughout fisa there are materials that are provided to the court that are not necessarily provided to defense counsel. That is correct. There will be circumstances where there is evidence that is not available to defense counsel . It is a difference between provision of notice and what happens after that. There have been circumstances where there is information about that evidence that is not provided to the defense counsel. I do not think there has been any criminal prosecution since 1978 in which criminal defendants have obtained access to the underlying affidavits and warrants that were underlying the fisa surveillance. This is routine in foreign intelligence prosecution. Defendants do not have access to the information that would allow them to challenge the constitutionality of the surveillance that is being used to prosecute them. Thank you. Another question . This is probably for mostly matt and bob. In documents released last night, they revealed there were some oversteps, including 200 analysts from cia who were given access to reports derived from some of this information that should have been walled off. How have you changed that process . We have read these older court cases that have been released piecemeal, in which nsa turns itself in for violations. Has it gone any faster from flash to bang in detection of a problem and reporting it to the fisa court . If youre trying to win back the publics trust, can you show me that you are Getting Better at policing yourselves under these laws . As a result of the compliance matters that have been released, the nsa revamped their approach to compliance. They put in a director of compliance, they have a staff of 300 people who are devoted to policing compliance. I think the nsa has made substantial procedural improvements. Theyre in the process of hiring a privacy officer. The answer is yes. I think they are doing better. Are they perfect . No. You have a system that is run by human beings, theyre going to make mistakes. You have stuff that is technologically complicated. Everybody has computers and every other day you get a notice from some program that says an update is available, please download the update. Every time a Communications Provider updates its processes, it may have an impact on how the nsas lawful collection is impacted. Having been a nsa, this is something that has happened over time. The nsa has improved its structure. There is now i Compliance Officer who was responsible for the compliance programs. The complexity of the landscape and over the course of the last 30 or 40 years, what nsa does post9 11 has touched on the domestic side of communications. It has been a challenge. Having worked at nsa, it is hard for us to find conscientious and rulebound workforce. I have a lot of confident in their abilities. If the rule says you can collect everything, its hard to violate them. It is remarkable how many violations there have been given how broadly rules are. It is important to keep both of these questions in mind. Not just are they complying with the rules but what are the rules and are those the right ones . Just to take a step back i think were in the middle phase of a three phase warm. The first phase of fisa reform was a period of secrecy where people like me said the fisa courts were rubberstamped. I was wrong. From the disclosures, i understand there is pushed back and a dialogue. We have the publication. We are learning more. Were learning about how the court interprets legal opinions. This is a middle phase. There has to be a third phase. We have to be able to act on the information that has been made public, that we are now debating, to put in place the reforms that are necessary. This comes back to lauras work and the purpose of these meetings. Your question is a middle phase question what do you think about what happened . It is interesting. More interesting is going to be what happens next. Next question . Sir. Hi. Commander paul walker. I am a jag with the navy. The statements regarding the vast chasm i want to address that and turn it to a question that might set up your next panel regarding the future. And the last 35 or 40 years, smith comes right after a year of fisa being passed. This vast chasm you refer to has been expanded through judicial interpretation cases coming before the courts. The Third Party Doctrine is not limited to just Business Records and informants. As someone who has clerked at the District Court level, i do not find the statements judges are would not look at that and analyze that opinion to be fairly credible. I think that any judge will be doing that. I think you have a fairly settled case law where many courts have said mandatory courts have said in addition that theres no reasonable expectation of privacy in those materials, and we give that up all the time intentionally because of what the court has said. I would ask, though, that in light of jones where at least one member of the Supreme Court has called into question, you know, the feasibility of maintaining that position on the reasonable expectation of privacy, where do you think, jemele and mark, that the court might this jurisprudence in the future . Well, first we know where wed like them to take it but where do you think they will take it . Well, i disagree, i dont they smith v maryland controls this case. I think that was a narrow it was a narrowtargeted surveils of a person cant suspected of a crime with primitive technology. Were talking about something very different now. I will i think theres room how the value 2008 the idea that smith controls this case, i dont to use your word, i you dont find that credible. But i think thats an overstatement, too. I mean smith and there is no case out there in which the Supreme Court has said dragnet surveils remoting you reaccidentalibling this is well, i mean, we can debate that for a long time, but let me just go to the second part of your question about jones. You know at least one justice in jones. I would say five justices not just judge sotomayor but alitos view that there is a new threat to privacy presented by the aggregation of all this information that we make available to the public in some sense. Or third parties and i think theres five justices in jones who are basically saying that the mere fact that you release or surrender your information to somebody else or even the mere fact that you surrender your information to the public doesnt mean that the government can aggregate all that information, analyze it without worrying the Fourth Amendment will be implicated at all. Those five will justices endorse that and that the Fourth Amendment is not indifferent to that kind of analysis. What that means for the Fourth Amendment to have been implemented by that is still i think an open question and something i think the lower courts are going to have to deal with and a question i think we will have to deal with in this case. Because the constitutional question here is whether the government i know bob doesnt like the world but dragnet analysis in this even if the kind of narrow surveils so i think its important to note that even if you assume that the in jones is in fact going to be the law, what jones was talking about was a very different situation here jones was a situation what was different in jones according to the justices is whether you were collecting so much information about a Single Person that that persons reasonable expectation of privacy may have been invaded but were talking about here a situation where youre collecting an information about lots of different people but in terms of the Fourth Amendment law, the question is as to each of them has their expectation of arrive cri been violated . And i think its a very different propist decision to say my expectation of privacy has been invaded because information about jameel and other people in this room has been collected. The fact of the matter is every case since smith v maryland including last week a case in california directly talking about the section 215 program and the contents of a criminal case has held that theres no reasonable expectation of privacy held in this. Thats not to say theres no privacy interest and as i said thats why we have restrictions on this. But for Fourth Amendment purposes this is not protected, whatever may be the case in the future. I mean, youve asked a great question, and it is sort of the looming question as you move into the substantive realm of the future of the Fourth Amendment, i have not doubt that when the Supreme Court reaches smith v maryland there will be a different result. And you see the shadow majority in jones which is the concurrence of sotomayor and alito opinion but you also see in it in the dog smith case where she actually tries toe fwridge reasonable expectation of deprive cri doctrine with the i think the court is anticipating that there will in fact be a change. I worked on the amendments to the wiretap act back in 1986, we were well aware of the smith decision and the plates the pin register and trap and plates to overturn smith v maryland so its actually odd to me 25 years late tore see this tangible records provision with fisa being used effectively to run what congress thought it had addressed in 1986, but heres my point to pull a couple key issues together i think in our modern digital age and knowing the value this information does have to the government and the conduct of surveils, a wiretap act the almost upside down. We protect the content of communications for historical reasons. We give the transactional data associated with communications minimal but the content is not as easily processed. It doesnt show the timing and consequence of events which in a Digital World is much more revealing. But i think we as a society through the courts as well will need to confront the fact that its actually the digital data that poses a greater privacy risk than the underlying data. Thank you. So we have reached the end of our time here. I would like to give each panelist one opportunity to say one more thought before we leave the panel if theres anything that hasnt come up that they have not addressed, well start with jameel. Think i have said whatever i want to say but maybe i can respond to what he said. [laughter] i would take this back from my perspective to an operational side. When i was in law school in my first year, its always better in a to make up the law than to look up the law which i thought was an inspiring thing to say to law students but its a dubious less on the those of us on the he practical side now. And sour job so protect the country. Thats what we do at here so we need take full advantage of the legal authorities that are in place to do that. And and its very useful and i applaud georgetown and you, laura and its very thoughtful to have marc and you here to an tor you think about where we are going. But in the meantime we in the government need take advantage of these authorities as they exist, and we need to have some certainty about that. Thats what im concerned about right now in a word its an unstable place and marc and jameele brought this up. Some may be hesitant to take it to the line. So i look forward to the time where we have the full faith and trust in the American People in these racketivities and we can go about the business of protecting the country. Thank you. Bob . I think that what i would to suggest we need to consider is whats the best way of one hand to get the Intelligence Community, the information it needs to protect people and on the other hand to protect privacy and kivel liberties together because the history of intelligence over time is a pendulum swinging over why didnt you do more to protect us and what . But were swinging towards the latter side of it and its going to swing back. Theres one model that would say the way to achieve these sbothe by putting very strict limbalations on what the Intelligence Community can collect and say you never get to look that the information. Theres another model which i think we have applied so far which is allow the Intelligence Community a broader look at the expectations and then appropriate oversight to ensure they comply with those. Neither system is perfect and neither is a way of acquiring information nor protecting privacy but i think those are the two competing models that we have to balance in terms of what the proper way to go forward is. Thank you. Marc . Im just going to close with a big picture comment and also express real gratitude and respect for bob and your role because its a whole different world to be responsible for outcomes and i do understand that. But at the same time let me tell you what really concerns me. I think there are institutional dynamics and powerful tech in a logical changes that are her technological changes that are driving us toward certain outcomes. Where mass surveils becomes al fact where Decision Making is increasingly scrutinized and the logical decision sincere made secret. And i think if we dont take this moment based on the information we have obtained to put in place some robust safe guards and structural reforms, what might evolve over the next couple of decades will really be quite scarey. And to give you just a little flavor of this, what we do over at epic, were trying to understand, for example, why do certain people get pulled aside for secondary screenings at bag check . Why are some not . There are reasons but largely kept secret and applied to a large number of people under counterterrorism theres a. That logic can expand just like logics logic in 215 that having a lot of data in place when you need it justifies what you need before an investigation gets under way and we need to prevent ending up at that point. Thank you. [applause] here is some more about the nsa surveillance program. Here is an article by the new york times. That is democratic senator ron wyden pushing for laws that would limit the Data Collection programs. It would bring more transparency to intelligence gathering. There may be an opportunity for these members to attach their provisions to the annual pentagon policy measure, which will be considered in the sent in the senate. Would createndment exclusion requirements, including public reports on the frequency of cell phone tracking and how many times the nsa itself violates its privacy walls and safeguards. And more on information gathering. This week on newsmakers, the with armedry budget an Services Committee chair wrap chair are presented of mac thornberry. Now with what wiki leaks has will any of those allies ever again cooperate with United States the echo the United States . I dont know, if i were them you would have to wonder about it. We have very limited resources. Key factor in our success has been working with others and cooperating and coordinating our efforts. Anythingthink that they send to us is going to be leaked out in some ways. Theyre going to cooperate less. Another consequence that might come from the revelation of the surveillance programs is the white house fairly considering the nsa director keith alexander. Corks it comes from one of those questions where i think you should not have a kneejerk reaction. You should think about the nsa, cyberp between command, and the leadership of both of those entities. In last years defense bill we required a study of these issues and what that relationship would be. At the pros and cons of separating them out, we have not gotten the results of that study yet. Are not just about responding to the last weeks deadlines. They have major consequences for our ability to protect our people from also to threats. As the reason i think we should do it in a deliberate way, looking at the pros and cons with cool best judgment. You can watch more of our interview tomorrow at 10 a. M. And 6 p. M. On cspan. After newsmakers, the awards ceremony for thi