Transcripts For CSPAN2 Civil 20240705 : vimarsana.com

They are going to look back at was going on right now with respect to an 11 before we dive in and you can submit your questions online via webpage, facebook and youtube as well as twitter. Twitter center of surveillance and ill saycenter of surveillance and google, it would take you to the timeline that covers the period from early 20th century, a series of events but use the as we go forward. I want to turn now our panelists here. The Deputy Director of the National Security project, senior director of the center for justice and liberty National Security program and carrie cordero, former assistant u. S. Attorney as well as senior fellow and general counsel at the center for new American Security, thank you for partnering to be with us today. Ill say to break a little bit, i was home sick on 9 11, i was erotically supposed to be in very section of the pentagon was hit by one of the airliners and a little after 9 00 a. M. On the morning, i turned on tv and i saw the tower burning and the news anchors saying a plane struck at our new york city and he couldnt understand how it could possibly happen because it was a clear sky on a beautiful morning and only about 30 minutes later i watched and complete horror the second aircraft ran into the other tower and it was in that instant i knew we were under attack and they knew it was almost certainly al qaeda responsible for the organization being responsible for the attack on the industries in the attack in the fall of 2000. I knew as soon as that happened, that horrible event essentially none of our lives are going to be the same. I knew would wind up going to war to try to track down bin laden and we did but unfortunately it warm wound up expounding the use of military force still not taken off the books much to the chagrin of my colleagues. At the same time the military action was initiated and Something Else started to happen and it was a massive domestic surveillance and International Surveillance designed to identify whether or not hijackers were on the loose in the United States to begin with National Security agency and uncle hayden had a program that would be made public and we will talk about that but i knew on that day the life of this nation would not be the same for its never been the same and can never be the same. I want to take a couple minutes. Wrote and the emotional piece a couple of years ago and what was it like . You are at the department of justice a relatively new employee at the time, tell us if you can, in a minute or two what it was like that first day and the weeks immediately after. Its great to be with all of you today at this conference. Have to be back with all of you and appreciate Historical Context starting off here as he launched into a series of conversations about surveillance activity and the future of surveillance. Wonderful law, that particular piece in a number of your viewers the 20th anniversary so that was published september 112021. From time to time, ive been able to write reflections on my experience and i taught intelligence reform in the National Security space. Usually time to time over the course of many years after september 11, 2001, lessons we could glean from the 9 11 Commission Report itself published in 2004 and provided an accounting of what transpired in the events leading up to september 11 and declarations have to restructure government to prevent future activity from happening again. The 20th anniversary, i was time to talk about what was like the day so this was over 20 years ago so i was a junior employee at the Justice Department, a law student at the time going to law school at night American University and working at the Justice Department during the day and at the time was a tiny report through counsel intelligence policy to the attorney general, no National Security division of the Justice Department at the time. Theres a small office probably under 20 lawyers and administrative staff working on counterterrorism and counterintelligence and other National Security matters for the department so a small number of people who mobilize under the existing trim work which was the fourth intelligence and will spend time talking about this and trying to operate what was at the time environment so i saw individuals, a lot of the piece focuses on how i look at individuals in leadership positions and they adopted that week and what was like as a junior employee at the time, watching Senior Leaders be in charge and seemed unsettled so it was a different experience from those who watch the events on tv or read about it in the news. For me it was working until 1 00 a. M. That night and coming back to work the next day at 5 00 a. M. And continuing that pace for days and many colleagues continued that for weeks if not months but it was a time where i was present beginning late that morning september 11 and the command center which over time ramped up the nerve center for the global investigation to uncover what became the 9 11 attack. Its funny how you can have something written in your notes for Something Else on your brain. A wartime environment and it brings back memories when i was working at the Intelligence Community so i identify with the. You were also multiple or getting ready to go to law school. What were you thinking . And how does it form your career decisions. Its great to be here as part of this talking about how the events of 9 11 still shape many of the conversations youre having today about surveillance. I just got back from my reunion and coming in to the panel, i experienced 9 11 is a member of public and a lot of ways but it was the start of much greater awareness for us as a country and government power exercised and expanded in the aftermath of those events. A couple years after those events, i had to law school and was part of a clinic team that worked on a number of issues for this response to 9 11 including surveillance and al qaeda in the detention and material witnesses and Muslim Americans and a vast number of detention that occurred after 9 11 in new york and new jersey area. In the little more time in the work law school and it left a mark on my career path. I think we will come back to this, a couple months before disclosures in the tenth anniversary and one of the surveillance cases related to this came down four or five days before i started this. We were thinking on how to respond to the decision and as we learn from edward, that had an impact on his choice to release material that shed light on how the government surveillance activity expanded in the 12 years between 9 11 so i think will come back to those topics but also there were important moments of transparency between 9 11 and these disclosures, it gave us a picture into the issues related to 702 and executive order that i know we will get into today. At the time of this incredibly horrible thing that happened. I was on vacation, i was at a house in a remote part of italy with a friend. I wasnt living in the u. S. At the time, i was working in control and we had no tv but in the afternoon, it was all blackberries back then, lit up with the news and i remember this hotel in the village to watch and see was having in this experience because one is my instant thought, what does this mean in terms of where u. S. Will go to war and that was a reasonable fear but then come back to the u. S. Until 2007 when i moved back to the u. S. And started working on National Security issues and the reason i started working on National Security issues was because i felt a Junior Lawyer and coming back this midlevel warrior, i was kind of shocked but i thought were changes in the u. S. In terms of how i perceive the system and society. So many friends who are muslims and arabs who told stories of how they were treated at airports and sometimes even streets, it came back where i felt the change fundamentally in terms of how we treat muslims and that very much motivated me to motivate my career in this field. A perfect segue a question i wanted to ask. In that you said this, im quoting directly. I cannot believe then and dont process now 9 11 and al qaeda presented an x essential threat to the United States. It struck me that the Bush Administration from my perspective anyway definitely treated as much more of a threat in terms of Massive Military Campaign does not just afghanistan which is justified but also an act which was not begin in my view so when you are there and all of this began to take place september all the way to the end of the year, what was the mindset you receive and what were you hearing in terms of the administration, was there any concern raised about where this might take us . Thanks for the question. I think it is important i empathize for our viewers this was 20 years ago so my perspective was one of someone who is very junior will still in law school not part of the seniorlevel conversations today and similar environment i might be part of so if i think back on this from my perspective at the time in the conversations i was part of in the environment i was part of, it was about preventing the next attack so i cannot emphasize enough what the threat environment was like at the time. From my perspective at the time which was operational matters and operate within the Justice Department role supporting operational matters, meaning investigation. The objective was to prevent another similar follow on attack and much of the intelligence environment in the days, weeks, months and years following the attacks were of constant threat real efforts by terrorist organizations, al qaeda and years later follow on groups in here to similar ideologies and drove is that era of Al Qaeda Organization to conduct more attacks against americans and American Interest in other parts of the world as well so my perspective is an operational perspective, our job was to prevent another attack. If i look at things in terms of todays policy environment or how i see changes that have taken place to the loss september 11 by 702 which will be part of the conversation but also much of the conversation for surveillance discussions continue among my approach at this time is moving forward so the work ive engaged in has been not to try to undo changes to the law that my perspective did prevent another followon attack on the scale of 9 11 but also make sure the changes to the the laws are modernized, adopted to the current threat environment which is different than 20 years ago. What is interesting and thank you for those observations. I understand the limitations to Decision Making discussions but i find it interesting all of the discussion we are having around 702 and the patriot act, these authorities did not exist prior to 9 11 and the inquiry into thousand two and 9 11 Commission Two years later was it was not a lack of collection that got us in trouble, it was a failure to connect the dots to use the words of the chairman, governor kane on the 9 11 commission so thats what i find interesting about the discussion, they were put in place before an investigation had taken place but why the attacks succeeded so we have this bizarre situation, putting the cart before the horse. In the intro remarks, the concerns about what would happen to Muslim Americans and muslim immigrants, it became a major focus. What happened after the attack . Near using immigration laws, using material witness law to round up muslim men and i think about 1200 people were rounded up, i dont think anything really came of it but there were deportations and emulations and the like, those are frightening things i think people still talk about because it was a shock to the system, people were getting picked up on the streets and around the same time you had the questioning program where you had Law Enforcement working with local police rounding up muslim men immigrants and american citizens, 8000 People Holding for interviews which were volunteer. They werent voluntary, there is pressure to come in and talk to the authority and through community they were pretty lowkey in society, it is not a society used to sing itself as discriminated against, obviously there was just rumination but it didnt see themselves as vulnerable particularly and then you get the institute not, you start off with these broad measures and then you have institutionalization in this program which was legislation focused on immigrant communities and a series of programs starting with things like how the fbi was investigating individuals. Move away from the idea that investigations should be tethered to some sort of criminal you go to this idea but as long as you have authorized purpose, you can start an investigation and i think this has led to the uses of 20 years where communities have had performancebased listening and not going to this Community Center because they suspect someone is terrorist are committed a crime but just sit in there and listen. That is a big change to last two decades that has infused our system, this change from looking for something to just look broadly for people who might do something wrong so it is a huge change for the Muslim American community and self perception going from a community relatively well integrated, big parts of the Community Well educated, they dont see themselves as being vulnerable or victim in that has really changed views. I would like to bring into the conversation, eliza brought us up to almost the mid decade of the 2000 with the use of assessment and the benefit of our audience in december 2008 Michael Mckenzie is one of these going out of office. These guidelines for domestic fbi investigations and they are promulgated in 1976 by edward and its happening in the wake of major scandals with this and there were efforts to get legislative charter to congress. Ed, when he issued those guidelines essentially succeeded in taking went out of their sales and the guidelines underwent various changes over the course of the years but in 2008 were booked for the most remarkable and the most important, this creation called an assessment and these assessments do not require peers i was shocked that would be possible to have Something Like this in the u. S. The rationale behind that was at least in part, massive information flow thats been referenced when you get information coming in, it will put pressure on investigators to figure out whats real and whats not separating the chaff from the wheat if you will. Criminal Justice System is predicated on this idea of individual guilt and some kind of suspicion if not probable cause so im wondering, i dont know how much time you spent looking at the fbis use of assessment and these investigated authorities but if youve got some thoughts, i would love to hear. The guidelines, there was this revision in the intervening years and one of the things was a bunch of different steps of guidelines for investigations, National Security, criminal depending on this investigation and working with the fbi, it was a conference of multiyear effort working with the fbi to revise guidelines and what became the attorney general guideline domestic operation so a substantial revision and modernization to the guideline and that set. Theres different categories of investigation for a full investigation and enables investigators to use intrusive techniques, preliminary investigation and category of assessments intended to enable investigators for certain limited investigative steps checking Public Information and information collected. A limited scope of review if a report on investigators and they just need to be able to do these stages looking into something to determine whether or not it needs further investigation so it was intended at the time to have investigators with a limited set of early staged to determine whether its needed on the investigation. An overseer in the department would want to make sure those assessments all the time frames intended for, they were not continued indefinitely or a long period of time and they were conducted in the limited scope they were intended want to make sure there is sufficient oversight so they are conducted in the way that they were originally intended if it turns out investigators deduct threat assessment and theres nothing there and it needs to be closed. How does it work out with assessment . Ill start, we have been very critical to the attorney general guidelines. It does not require predication, its [inaudible] we are preliminary in a preliminary investigation and the lack of predication has opened the door to discrimination and profiling confirmation bias to operate at the early stages of the investigation so assessments have been problematic for the Muslim American communities weve talked about but we believe its proven problematic for Asian American and chineseamericans now under scrutiny by the fbi in the context of the China Initiative about but the rising Political Tension with china. Ill mention, i know we will come back to this, our understanding has been that agents can run through the databases and now additional rules and sustain them so the availability of those to search through private emails and munication, there are concerns about what agents can look at and intrude privacy. One thing to clarify is searching public the basis doesnt require an assessment. They have the authority to do that girl this whether or not an assessment is open. As patrick mentioned, tools available, obviously not a search but there is Information Available in government databases, probably a lot more now than in 2008 so that is axis to a broad variety of information. You can also add an assessment of informants already on board and the way i look at it, it doesnt turn the issue on its head, it enables the fbi to go out and look for people who might have committed some kind of crime so they are not looking based on anything objective gives them the opportunity, it opens the door to bias in the post 9 11 world, that was firmly directed at Muslim Americans and thats where we saw assessments playing out. In these operations that are controversial the last 20 years you have somebody who goes in to a mosque and piercing controversial things and they pull people into manufacturing by the fbi. There are a lot of people including American Community who say crazy stuff, stuff that is really disturbing. Thats taken seriously in the doesnt get taken seriously as would seem clearly the last couple of years. You raised interesting things with respect to speech and how it can trigger surveillance. When you act justice, how much did the decision come up in the context of these investigations where there was clear domestic nexus . For the benefit of our viewers and listeners, 1969 clarence brindamour, the ku klux klan in ohio basically was shut down from engaging in this speech under a particular statute in the books. He appealed and gets to the Supreme Court and the Supreme Court creates a twopart test with respect to the line between vile speech and transition toward a segment toward violence. And thats essentially what pfizer was referencing so im curious, its been a long time for even since, a chance to talk about that but this line between speech and action, how often did that come up. Thinking on this, one that goes back to operational counterterrorism working on cases that went before foreign intelligence and one that i think is really relevant to todays domestic Security Threat environment so on prior, First Amendment issue was constantly top of mind lawyers at the Justice Department working with agents and analysts that went to the courts and by the Court Application includes investigation and attorney general guidelines only operations continue caveat that the investigation and continued into surveillance and cannot be based on First Amendment activity so that concept of investigative activities search request as a general matter not based solely on First Amendment activity with the concept constantly top of mind to individuals and National Security working on investigations. That said it is important because of what people say online, what they might indicate with other intelligence sources can be a factor, it cant be this and reviewing the case, you cant ignore threatening statements or engagement an individual may have budgeted cannot be the only basis so that was held throughout the time i was involved in operational matters back then, i think it is even harder issue that federal investigators working through now as it pertains to domestic terrorism cases for racially and ethnically motivated extremists currently are presently serious and significant threat in the u. S. And also transnational aspect to these violent extremist groups and as mentioned, tomorrow a center for American Security will have the dh as coordinator as well as other experts in the area talk about that aspect. I do tend to assess the outsider now that the government is perhaps struggling with adapting investigative activity in a way that robustly, and as they did 20 years ago, seriously look at the International Terrorism threat of the al qaeda variety and equally seriously racially and ethnically violent extremism and related extremism in the u. S. And navigate that First Amendment line. Bridges dealing with many more americans in this activity so the First Amendment issues become more and they are primarily here in the u. S. As opposed to foreign so ill pause there. They probably talk about that as well. I think your you did. There we go. In here you know. I think one of the things thats interesting, people who start out working on the International Terrorism trying to adapt to domestic terrorism, it is interesting to see the struggle in the sent for a couple of reasons. One is in terms of numbers if you take january 6 out of the equation, im not sure the number of americans look that the fbi today is that different when they were really focused on Muslim Americans the last few decades. Its difficult because the categories are difficult to know the context but one thing that struck me is the fact that Muslim Americans, there is a presumption that they have at least ideological affinity for a foreign terrorist ideology for the transnational aspect, white supremacist violence are secondary and the thing that strikes me is the fact that the category and ascription are so different with Law Enforcement so homegrown violent extremists, the term used by the fbi and other agencies talking about Muslim Americans really suspect of terrorism. All that really means is even if someone born in this country, raised in this country isnt american, the fact that they have some ideological affinity with foreign ideology is enough to put them in a special category. Domestic terrorism is treated as something different, something where these are real americans, people for whom ideology is considered american ideology without going into the idea of which is which, both those notions to me seem wrong because ideology transnational border, they do reflect this fundamental underlying concept of Muslim Americans other than its more american. Maybe that was a little too much but i really feel it is fundamental to have the differences on how these are approached. I do want to get an opportunity to jump in but quickly, Historical Context, i do think it is important, i finished manuscript dealing with surveillance and a twovolume series and this covers the period essentially from 1901 all the way up to Dwight Eisenhower and whats fascinating and terrifying was to go through records from the world war i era and to see how victimized german americans were, im talking about lynching, murder, all of these things so it is a phenomenon fortunately that is human because here he was talking about a group of angloamericans, persecuting another group of white americans, a large number of them ultimately and again it is that corner aspect, they have to be colluding in some way. It is broader problem, its just over the course and i would go back even further, the focus on Muslim Americans goes back to palestinian rights era, they targeted professor of columbia and others in the investigation that we dont remotely have time to get into so i dont think theres question but its a phenomenon as you go back and look at the historical record, an awful lot of groups ethically, religiously, politically wound up in the crosshairs completely insistent pattern and that speaks to the larger problem i think we are dealing with but i want to give an opportunity to respond. The only thing i will add is to come back to most of the regulations both in the statute and rule, use this term and its hurting to know is taken seriously by people working in the government but will be have seen is that term, it almost becomes a vanishingly small category, the opinion weve attained through litigation and the court and it deals with one of these issues and although it is redacted, it illustrates how even showing support for an organization, it engages in active terrorism in a way where the Court Granted approval under section 215 and its easy to find out the government says it shows its not for this purpose. Setting up this issue of and im sure all of us the four of us on this panel probably feel pretty much the same way about what happened leading up too during and after but it does raise questions when we talk about drawing a line between speech and action and they are asking essentially using the phrase cooperative force, joint Terrorism Task force. When we talk about federal, state and local partnerships, how much of a concern do you have about state and local Law Enforcement partners necessarily being as well first and concerned about these issues raised in respect to First Amendment protection . Its important to keep in mind the rules and response abilities of the different Security Services of Law Enforcement organizations so its the fbi as a federal government primarily tasked with National Security investigation and counterterrorism investigation including domestic terrorism investigation, that is their job and the fbis primary possibility for those investigations. Thus the federal government level in particular office of intelligence analysis that has information sharing both state and local and Law Enforcement as well as the other way pushing information the federal government knows for the local Law Enforcement. State and local Law Enforcement, their primary job is Public Safety and protecting their communities and the nature of Law Enforcement and Public Safety challenges they face often depend on a particular region in different areas have particular challenges they are dealing with whether they are struggling with the fentanyl crisis for example or other drug trafficking, gun violence, every region has different issues they are dealing with across the country but i would suggest it is the federal government primarily responsible for uncovering threats to conduct terrorism related activity whether international or mystic terrorism acted. To be a little more precise, a concern i have and other panelists is the number of state and local Law Enforcement officers wind up being deputized by the fbi, dea or hsi one of the concerns i have we dont know how many get that production because once they are deputized, that means qualified immunity comes into play so if they engage in this, its virtually impossible to hold them accountable so i know i have concerns about. We have about six minutes left here, i wanted to make sure we managed to get in another question or two from our audience. Some folks were asking, why hasnt morgan done . There was a lot of that, this was a nexus for that and it is my understanding and im sure you will correct me if i am wrong, its my understanding there have been prosecutions of those individuals taking place. Am i offbase on that . Im sure we have seen prosecutions for destruction particularly this important and elsewhere. If there is damage to federal property, federal government is aggressive in being able to prosecute this and january 6 investigation is an example of substantial nationwide extremely large expensive investigation prosecuting individuals involved. I dont want us to leave today without giving you an opportunity on the one federal Surveillance Authority that is a four renewal or expiration. You can get the last word. 702 of four renewal or expiration in december of this year and even though seven months out we seen growing public debate whether it should be reformed, reauthorized. Opinions by the present court secret intelligence court in the use of section 702 to look for communication including the context of protests after George Floyds death and the january 6 investigation which grabbed a lot of headlines in the use of these searches were communication was obtained through section 702 surveillance and people overseas and its controversial, the public is still learning how those are used in the different purposes so we have been litigating challenges section zero two years, the courts have been the courts continue to evaluate questions around whether you have someone whos been subjected in which rules apply and the questions are front and center for congress as well and are you his fundamental reforms are needed to bring section 702 in light of the conversation. I have to associate myself with everything patrick said. We think fundamental reforms are needed for 702 and repeated releases from the by the court that shows over and over again fbi has been accessing collected data about americans. National security purpose for all kinds of things. I dont think it was this but the one before 4702 for security clearances and contractors or Something Like that. The numbers have been very large. They have separated 702 into a database that seems like a good relevant and they are totally willing to constrain the fbi in this way. Tell us why the authority should be reauthorized. Congress absolutely should renew section 702 of the surveillance act, it is critical intelligence tool although where the primary justification at the time was for counterterrorism purposes, originally intended to being intelligence collection framework under the law that enables a wide array of National Security threat so what it means is it enables intelligence on what china is up to and what russia is up to, north korea, iran. It has a much broader use that is critical to National Security so it enables the government to be able to use information when they use Communications Networks so it is critical in the past scheduled, theres been bipartisan support and by the end of the year it can be renewed in this authority. Kerry has basically brought us to the end of my arm today. Thank you for this great discussion today and i hope it was enlightening for our audience talking about history but also current events. With respect to cato surveillance, tomorrow at 1 00 eastern here, same place where we will engage in broader discussion as well as a fairly deep discussion on surveillance reform, section 70240 the centerpiece of that discussion. We will talk about like executive for a particular Drug Enforcement authority im deeply concerned about and a whole lot more we want to try to cram in to the hour so i hope you will join us. Im patrick, thank you for watching. 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