Transcripts For CSPAN3 American History TV 20141014 : vimars

Cetera, so thank you for the giving me the opportunity to give that plug. And join ustion tuesday here on cspan 3 for programs focussing on health care issues. Well show you remarks from larry murlow and a house hearing on Medicare Fraud all starting tuesday at 8 00 p. M. Eastern. Plenty more Live Campaign 2014 debate coverage coming up tuesday on cspan. Starting at 8 00 p. M. Eastern, an Arkansas Senate debate between incumbent mark pryor and republican congressman, tom cotton. Recent polling has this race as a tossup. Right after that, South Carolina govern nikki haley faces off with Vincent Sheheen and tom ervin. And then John Kitzhaber versus dennis richardson. 10 00 p. M. Eastern also on cspan. With live coverage of the u. S. House on cspan and the senate on cspan2, here on cspan3, we compliment that coverage by showing you the most relevant congressional hearings and Public Affairs events. Then on weekends, cspan 3 is the home to American History tv with programs that tell our nations story. The civil war 150th anniversary, visiting battlefields and key events. American artifacts touring museums and historic sites. History book shelf with the best known American History writers. The presidency, looking at the policies and leg sis of our nations commanders in chief. Lectures in history, with top College Professors delving into americas past. And our new series reel america. Created by the cable tv industry and funded by your local cable or satellite provider. Watch us in hd, like us on facebook and follow us on twitter. Now more from the american bar Associations Annual Homeland Security conference. This portion features remarks from robert litt, general counsel for the office of the director of national intelligence. He discusses the relationship between security and privacy, while also looking at nsa surveillance. Recent Supreme Court decisions and the Fourth Amendment. This is about an hour. Should have brought my sunglasses. You can help us out if you speak directly into the mics. Hard rule of thumb. Not to be rude. Okay. You can turn it towards you. Folks, we got were round out the conversations in back of the room and then well get started. Well get started now with our next panel, this is our first breakout session of the day and were going to go to other breakouts as we go past the hour our lunchtime presentation. Reminder about lunch. You should go get your lunch in room 207 and then resume attendance in this room. Im going to call sergeant in arms to arrest those of you in the back of the room that are still talking and that will happen in another life time. Let me mention that this topic is one that i know is familiar to many of you that practice law in government and in the private sector, particularly here in washington, d. C. And thats striking the balance between privacy versus security. And, again, this year we are honored to have congressman turner from formerly u. S. Congressman from texas as our moderator. Jim served with distinction for four terms in congress. He has a military background, formerly a captain in the u. S. Army. Jim won praise from both parties for his work on Homeland Security issues in the time post 9 11. Before congress, jim has a distinguished career in texas State Government both serving in the house and state in texas and he is a university of Texas Law School graduate and aspired to be what jim turner is as both a leader and a lawyer. And if anyone in this room ever needs help on any issue both in front of congress or with the executive branch, certainly with jim turner at the helm, its going to be successful. Or youll get as much success as possible. So with that, let me turn it over to you, jim, thank you. Thank you, joe. Really appreciate the opportunity to be a part of this panel and i want to thank joe for all his many efforts this year and in previous years to organize this program for the aba. In this panel, were going to be discussing, as joe mentioned, tension that exists between Civil Liberties and National Security. We have a very distinguished panel and i would like to introduce each of them to you. First, to my left, we have jennifer daskal, stanlt professor of law, American University school of law. Jennifer is an assistant professor of law and she focuses on criminal, National Security and constitutional law. Prior to joining the Washington College of law in 2013, she was a National Security fellow anded a jujt professor at judgetown law center. From 2009 to 11 she served in various positions in the department of justice, including as counsel to the assistant attorney general for National Security and served on the secretary of defense and attorney general led Detention Policy Task force. She is the Founding Editor and contributor to the recently launched just security blog and shes a graduate of brown university, Harvard Law School and cambridge university. To her left, is chuck blanchard. Chuck is a partner at law firm of arnold and porter where he i had the opportunity to see him frequently. He is in the government contract and National Security practices at our firm. Prior to joining arlen and porter, he held several senior government positions over his 28year legal career. Chuck served as a general counsel and chief ethics officer for the u. S. Air force. He served as general counsel at the u. S. Army at the u. S. Department of the army. And he served two terms as a state senator in the state of arizona. In 2003, he was named interim Homeland Security director for former arizona govern, january net that pal tan know. He graduated first in the class of harvard. Next to chuck is bob litt. A name im sure youve come across quite often in the last few months in newspapers. Bob is the general counsel at the office of the director of national intelligence. He was yun nam mousily confirmed by the senate in june in 2009. Prior to joining odni, bob was a partner at arlin and porter and served on the governing body of abas criminal justice section and as an advisory member to to the Standing Committee on law and National Security. From 1994 to 19999, bob worked in leadership positions in the department of justice at depsy assistant attorney in Criminal Division and principal where he was responsible for National Security matters ranging from fiza applications, covert action reviews and computer security. Bob has his bachelors degree from harvard and masters in law degrees from yale university. So, the score on the panel so far is two harvard graduates, one yale. So i guess harvard wins today. Even odds. But we are very pleased to have this distinguished panel and im going to let each of them make a brief introductory remarks then well begin to discuss among ourselves the issues that are laid before you and, of course, i hope that it will spark some interest from the audience and allow you to ask our panel some questions as we proceed. So, first, jennifer, ill let you lead off. Well, thanks to the aba for putting on this Wonderful Program for inviting me here today and thank you for the kind introduction. I believe were going to focus most of our discussion on the surveillance regime and the many debates and disputes and discussions about it. I want to spend a few minutes talking about some of the legal underpinnings of the government surveillance programs and to suggest that some of the doctrine on which the government has long relied is shifting under its felt a little bit and that this creates a range of opportunities and challenges for both doctrine and policy Going Forward. In particular, i want to talk about two aspects of the Fourth Amendment doctrine, chast moan as a Third Party Doctrine and territoriality doctrine in which is the long standing presumption that the Fourth Amendment only applies in the United States and outside of the United States it applies solely to u. S. Citizens and persons with significant voluntary connections to the United States. So, just starting briefly with the Third Party Doctrine, as i believe probably all of you know, the governments argument with respect to telephoning collection under the 215 program and presumably other meta Data Collections as well is premised to some extent on the idea that theres no Fourth Amendment issue involved because theres no search and seizure of information thats been turned other to a Telephone Company. And this is based largely on whats known as a Third Party Doctrine which stems in part from a 1979 case, smith v maryland in which the government recorded the telephone numbers called out of a particular suspect for two days and in the course of his criminal trial he challenged the governments collection of this information because the government didnt get a warrant and the court said there is no Fourth Amendment issue. Theres no cognizable search or seizure because this individual already turned over the numbers that he called out to the Telephone Company and therefore had no reasonable expectation of privacy in those telephone numbers. And this case has now been relied on po argue that there is no expectation of privacy in all of our numbers called in and out and has been the basis or at least part of the basis for the meta Data Collection program. And i want to suggest that this understanding of the Third Party Doctrine is challenged and is being challenged most recently by the Supreme Courts ruling in riley v california which came out late spring, early summer. And the very least the Supreme Courts ruling casts doubt on the validity of the Third Party Doctrine Going Forward. For those of who arent familiar with the case the facts were that two cases were joined and one case the government seized a smart phone of an individual during the course of his arrest and another case the government agent seized a flip phone, those were the old phones that probably none of us use anymore but that basically they dont record that much information other than the call log who you called and the number dialed. And the cases were joined and in both cases the defendant in those cases claimed that the search and seizure of their phones was impermissible and the government claims no, its totally valid as a search incident and arrest we dont need a warrant. We dont need to go through the ordinary Fourth Amendment procedures. And the court ruled unanimously that against the government. The court ruled that the seizure of these phones was not justified as a search incident and arrest and the court disagreed with the governments arguments about exigencies said that there are ways to preserve this information if youre concerned about the information getting lost. The court disagreed with t governments claim that there was any sort of safety risk associated with these phones. And most importantly for the purposes of my point is that the government the court disagreed with the idea that there werent any legitimate recognizable privacy interests in the phones and they describe the wealth of information that can be stored digitally on these phones as possibly providing more information than is uncovered during the search of ones house. The court distinguished both quantitatively and qualitatively between the wealth of information that can be seized and revealed through the review of ones phone from tangible evidence and they quoted the court quoted with approval from an earlier concurrence by jus sis sotomayor in which she defined gps monitoring kprae hending record that reflects a wealth of detail about her familial and sexual associations. And whats very interesting about this ruling on this reasoning is it didnt just apply to the smart phone, which we all know reveals a whole host of information about us, but it also applied to that flip phone which doesnt tell us that much more than the call log details, who you called, who called you and for how long the call lasted, which is about whats collected in the meta Data Collection. And so my point is that this strongly suggests that the court will be highly skeptical of the claim that the Third Party Doctrine can be applied in this new context, that it means that when the government collects the meta telephoning data and other meta data that there is no Fourth Amendment violation. Im not saying that meta data would therefore be impermissible. What i think is well see a shift. Whether or not the foreign Intelligence Section applies and new pressure on whats known as the special needs doctrine which justifies a range of searches that require less than reasonable suspicion, sometimes suspicionless search based on compelling government needs separate from Law Enforcement needs. And then we have agreed to speak very shortly so i wont get into the details but i hope we get a chance to talk about the ways in which i think data challenges the very foundation of what i call territoriality doctrine, the idea that the Fourth Amendment is circumscribed and only applies in certain places and as to certain people and that the way data moves about and the arbitrariness with which data moves about and the difficulty of effectively distinguishing between u. S. Person information and nonu. S. Person information ought to cause us to at least reexamine some of the foundational principles on which some of our collection programs rely. Ill stop there. Okay. Thank you, chuck. Im also going to focus a little bit on the Third Party Doctrine rule because i agree that recent concurrences can from the Supreme Court as well as the decision of judge leon in the district of Columbia District was challenging the old version of the nsameta data program has put into doubt whether the viability the Third Party Doctrine or whether it will be limited. I want to talk just briefly about a few things. First, its important that you understand that the Fourth Amendment decisions that have come out of the pfizer court have largely relied on the Third Party Doctrine as rational for why theres not a Fourth Amendment issue, but there are also a lot of statutory issues that are in play and most of the decisions focus on those. Even if the Third Party Doctrine survives, i think the debate will continue to be Going Forward on the more regulatory and statutory govern ens here which may be ultimately where the action is going to be. But as jennifer said, theres been some recent decisions. I thinkty first one thats worthy of talking about is the jones decision which occurred a few years ago that involved gps trackers. And the majority opinion really went off on one critic said they looked at 21st century problem and came up with a 19th century solution. That is, they sort of ignored the technology and just focussed on the fact that there was a trespass on the car in order to put the gps system on and that was enough for Justice Scalia to find a Fourth Amendment problem returning to the way the law was in the 19th century. But there were two concurrences that were important. One was by sotomayor where she did by herself she did a frontal challenge to the continued viability and wisdom to the Third Party Rule in an age where a lot of our data is in digital form is out with third parties. Our financial data, our Telecommunications Data and a whole host of other information and she raised the issue whether it was time to reconsider this Third Party Doctrine because people do have if you ask them, a sense of privacy interest in the information that they send out to third parties. So she really put a frontal challenge. The other concurrence was by Justice Solito wh