All right. Im going to take the opportunity of this lull to begin the session. So im not going to spend a lot of time on introductions. I do just want very briefly, with us from brookings and law affair, this is a real opportunity, because matt, my copanelists interviewee, im not sure what to call him when theres only two of us, has a real remarkable diversity of experience with 702. And so i actually met matt way back when he was working on gaugh guantanamo issues once upon a time. He became general counsel at nsa and went from there to run National Security. As i think youll hear a lot of 702 material. And so let me start by just asking you, on a scale of 1 to 10, how important is 702 to u. S. Counterterrorism mission and to other national skuecurity progrs and what other interests . If i can channel the movies, ill say 11, for those of you who have seen the movie. The amplifier goes to 11. Ive had a lot of conversations about and it is you know, it is important i think to understand 702, to do a little bit of historical discussion, and the prior presentation talked a little bit about this as well. But the basic problem is has to do with the nature of fisa generally, the sort of landmark fisa statute from 1978. Like in a lot of connects, the law passed in 1978 didnt keep up with changes in technology. So and the wear fisa works is really the scope of what you can do under fisa is defined by the definition of electronic surveillance. That is the jurisdictional basis for what the fisa court can authorize in terms of electronic surveillance before an intelligence collection. And with that definition was adopted in 1978 based on the technology of 1978, were most of Long Distance communications were carried by radio communications. So there are lots of technologybased language in the definition defining the scope of fisa. That changed fundamentally in the 90s and 2000s, so that most of those communications were then carried over fiberoptic cable or a wire as the definition uses the term wire. That meant that instead of being able to collect that information without collection information, heres the important part, collection information where we were targeting nonu. S. Persons who were not in the United States, who typically dont have Fourth Amendment rights, instead of being able to do that without a probable cause warrant, we, being the Justice Department and the agency, nsa or fbi, we were having to go to the fisa court and get probable cause on an individualized basis. Fundamental problem, changes in technology meant people who didnt have Fourth Amendment rights were getting Fourth Amendment rights essentially by virtue of the government having to establish probable cause that the were an agent of a foreign power under fisa. It was an enormous resource strain, just thousands of personnel hours devoted to getting a fisa, probable cause fisa on a nonu. S. Person in yemen who was generally communicating with other nonu. S. Persons in yemen and places around there. But we were developing these packages that proved that they were an agent of a foreign power. That was a resource drain but it didnt make much sense because they didnt have Fourth Amendment rights, and we thought it made sense especially from a terrorism perspective of having a more agile means of obtaining their communications when we needed to, this is an important point, use a u. S. Based service provider. We needed a mechanism under fisa to compel their compliance as well as to protect them legally when they provided that information to the government. So it was a long answer, but thats kind of the nature of the problem. Okay. I want to shorten it. Thats not the thats not the sound bite. I want to isolate what it is, because were going to get to the problem of what happens when you turn off 702. I want to focus on like whats you know, what problem you are solving with it that you then stop solving if all of a sudden, say, on december 31st, it ceases to be law, or january 1st. As i understand what you said, it is that large numbers of lawful intelligence targets overseas communicating with other terrorists and nonterrorists lawful surveillance targets overseas, but whose communications are routing through the United States, would suddenly have to go through conventional fisa and thus be subject to wildly increased standards of a sort that weve never discussed as a society we want to give to, you know, aliens beyond the shores of the United States. Is that fair . Thats fair. All right. What kind of numbers are we talking about . So withe specific numbers are classified, so lets use big, round i think the government says there are a few thousand conventional fisa warrants a year. I forget the exact number, in the United States most years. Ballpark, where is the decimal point when were talking about how many overseas targets might suddenly become subject to fisa if you turned off 702 . And assume that all of those same targets were now, you are able to demonstrate probable cause and lets assume lets assume you could do it. Which in fact is counterfactual. But lets assume, lets assume theres x number of people overseas that you we now surveil under 702 without an individual probable cause, and those that are the universe of people you actually want to target. Right. For surveillance. And now you have to do it under fisa which were doing on 2,000 or something a year. What are we talking about . The numbers of actual fisas i think is around 2,000. The number isnt specifically reported by the government. The number this is an issue, i dont know if that number, if the broader number is public. I think there have been in the hundred thousands. I thought i saw that. So its a factor of 50 greater. I mean, your rough guess, how many of those targets could you get a conventional fisa against . Theres two dimensions to that problem. There is, could you establish probable cause, and could you amass the resources to, you know, go through those steps. Leave the resource question aside. Resource question aside, just a gut feel about the numbers that would meet the standard would be certainly under 50 , and maybe, you know, under 20 . Okay. So youre dealing with let me just summarize this. Hugely important program, 11 on a scale of 1 to 10. 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 that 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 it, youre dealing with an intense resource allocation. Is that a fair summary . Yeah. Mmhmm. Thats right. And maybe insurmountable resources, beyond intent. So here, before we turn to the politics of this, im just trying to establish the scale of the problem here that the political system is about to confront. What did we do before 2007 . You know, this is a new solution to this problem, right . You know, fisa the problem actually predates 702. What were we doing, how were we handling it before we had the particular solution that we now have . And why couldnt we just go back to that . So, you know, theres so you go back, when i talked about before, you can go back 20 years. The problem was on the scale because of the Technology Issue i described. Person a in batswana and person b in yemen when they were communicating, were not communicating through a server in the United States. Thats true. The fact of the matter is many of those communications do now pass through the United States, through a u. S. Service provider. And so the problem didnt exist to the same degree if you go back 20 years, maybe ten years. Then of course you have the terror Surveillance Program. So 2001 to two thousand, i guess as i would recall, 07, the government announced that any electronic surveillance that had been conducted under the terrorist Surveillance Program was now being conducted under the fisa court. So you had a regime that was based on article ii authority. And a controversial legal interpretation. So then, so if you go back that far, you go back to the legal authority. So, you know, if you were to turn off 702 and say, now you have to go back and cover these same individuals under a probable cause finding under fisa, we would go back to the brute force efforts that were undertaken when i was there to try to cover as many of those individuals, nonu. S. Citizens overseas, simply with title i fisa. And, you know, the same problem we just talked about in terms of resources and establishing probable cause. In the absence of 702, you basically have a bifurcated set of options. Either a robust and maybe unsustainable assertion of article ii authority, just kind of do it on the president s own authority, or you do it person by person, under conventional fisa. Right. All right. Lets talk about the politics of this thing, because fisa 702 has an expiration tag on it. And its not the first time that the authority has expired. But it is the first time the authority has expired in the context of a political environment quite as difficult as this one. And so we are now six months out before 702 turns into a pumpkin. How do you understand the politics of reauthorization . So its interesting, the prior presentation, one of the questions i think at the end was what was the vote or in 2012, so i was sitting here and i googled it. I think the senate was like 73 votes for reauthorization in 2012, similar proportion in the house. So at least by the time it was december 20th, you know, time i december to20th, looming deadli of january 1, there was bipartisan support for reauthorization in 2012. Going back to 2012, 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. So 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 critics on the left and privacy groups on the left to question some of this, right . So that had started to happen in 2012. Obviously those dynamics are still in play today. But i do think that it does feel like theres something thats changed from 2012 thats going to make this harder. Okay, so lets before we turn to the unique particularities of the Current Situation of which i can think of 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 these 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. And im im interested in your sense of when you think about the politics of, you know, who are 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 rush rebellion tea party thing . Let me go back to 2008. If you think about the law that was passed, first the protect america act, that was passed at a time that you had a very unpopular president , republican president , president bush. You had democrat 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, the basic challenge of building a statute that gave the Intelligence Community the ability, speed to collect vital intelligence while building in a number of safeguards involving the fisa court, the targeting procedures, mineralization procedures, the fisa court authority, all of those, the oversight mechanisms built in, all the things we learned about an hour ago. They were all part of this hard fought compromise where these groups this was not like a law that was shoved down the throat of one party over the other, given the nature of the executive branch in congress. I think thats important as you think about the opportunity state of play. And i guess one point to make, i think, ben in response, is that i dont think my own sense is, when you talk about the critics, i dont think there really is much debate about the fundamentals of 702. Maybe im wrong, maybe im naive or hopeful, but the value of it and the Core Principles of how it works, i think theres general support for that. Theres obviously some critics of the law on some of the on some aspects of it, but i think those aspects are on the fringes of how its used as opposed to the core of not requiring the government to get probable cause establish probable cause for non u. S. Prisons overseas to collect foreign intelligence. That seems to be pretty broadly accepted. I agree with the that, with the following can haveat. I 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 okay, if we accept 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 i also note that the aggregate legislative progress that weve seen toward reauthorization so far has been something close to zero. And moreover, theres another intervening event that i think is disturbing, which is the protect america act 215 debate which is a different subject but it 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. I dont think the legislative process associated with that was a harbinger of anything thats likely to happen to 702. Im interested in what you see as the current legislative politics that are different from the politics four or five years ago. Ill take a shot at that. Youre closer and better at knowing what the politics are than i am. I read the paper and try to stay up on this but i wouldnt hold min myself out as an expert on the political landscape. But there are some big things that changed in 2012. 2012 was hard in a way because of the libertarian streak in congress that had some critics on the right which we didnt have in 2008. The support of the right was kind of a given going into 2008. 2012 was harder. The big things are snowden, 2013. If i asked this group, im sure people wont raise hand 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, yeah, thats true because that was the lead story in the Washington Post shortly after the snowden revelation. Turns out not to be true. Its not true at all and really knowablely not true at the time that that article was written. And the post to this day has never run a correction for it. And they got a pulliitzer pre for it. We had an open debate where we established the authority to be able to do this and it wasnt the nsa tapping directly into the central servers of google and yahoo . But it was on a slide that was on a training slide apparently. Snowden, dont get me started on that, obviously. Thank you for pulling me back from the brink. We have snowden, and you know in some ways a lot of that, i think, has run its course is my sense. You brought up the 215 debate. That obviously was the sort of most controversial aspect of what snowden revealed, and thats been largely addressed. I feel like much of that has sort of dissipated. But it still informs the current climate i think. But then youre not going to say President Trump so i will say President Trump i was going to say it. Today at least a tweet from the president , the real story is unmasking and surveillance of u. S. 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 it is its 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. That in particular comes out in comments about surveillance. Going back to general distrust around the russian story, that goes back to preinauguration to the false statements about being from the president that he was subject to surveillance by president obama, to comments by chairman nunez about potential illegal unmasking. So this creates an atmosphere of distrust of what the Intelligence Community does, and you see it seems to me you see cynically people who know better on the right embracing those views to support the political position that the president has taken. Thats the best i can say. There are a lot of folks who probably know this issue and know this better than i do. But lets break that down because i think you raised two issues that are interrelated but i think discreet from one another. One is the messaging from the president alleging illegal use of surveillance authorities and illegal unmasking of people. Traditionally, we have relied on the executive branch not merely not to engage in illegal wire p wiretapping with either however many spaces, however between wire and tapping, not merely not to engage in it but to be the explainer of the legality of the Intelligence Communitys behavior. I think it does create a very difficult environment when the president is saying things that are that we would regard as people like me anyway would regard as wildly irresponsible if the aclu said them, which by the way the aclu wouldnt. And so i dont really understand how the executive branch, under the circumstances in which it is accusing itself of unlawful behavior on a daytoday basis, goes to congress and asks for renewal of these authorities, and i dont really understand how a reasonable member of congress under those circumstances, whether they believe the president or not if you believe the president and the Intelligence Community is doing these things, it seems kind of nuts to invest it with these authorities, right . If you dont believe the president s tweets and comments about these things, it seems i