tv Key Capitol Hill Hearings CSPAN November 20, 2013 9:50pm-12:01am EST
coming up on c span two tonight debate on the sexual assault in the military. then the georgetown law center exam congressional proposal to change nsa surveillance programs. that's followed by a hearing examining -- how security clearances are granted. on the next washington journal, pennsylvania congressman discusses the health care law.
the senate this week is working on the 2014 defense program bill. senator kristin jill brand's amendment would remove decision on sexual assault prosecutions from military commanders and give them to military lawyers. senator claire mccaskill decision keep them with the military chain of command but add more oversight responsibilities to the chief. in this hour, the two senators describe their positions.t? the presid >> i rise today to speak about to speak a my amendment to the national defense authorization act.
i want to start by thanking my colleagues on both sides of their aisle for strong and unwavering leadership on behalf of our brave men and women in uniform. i could not be more proud of the bipartisan work that has been done to do the right thing. i want to thank senator reid, senator booker, senator heller, our three most recent supporters of our bill. i want to thank them for their extraordinary leadership and determination to end sexual violence in the military.
i want to thank my colleague and friend from missouri for her unwavering commitment to helping victims of sexual assault. although we disagree on my amendments, i want to remind all our colleagues that the defense authorization has been made stronger in e numerable ways by
senator mccaskill's work. i will be supporting her amendment today. i think the provisions in that amendment will add even more positive changes to the command climate and will help victims feel like they have a stronger role. however, while the changes in the amendment are -- i cannot believe there is enough to truly ensure justice for victims of sexual assault. for that, we essentially need impartial, unbiased, objective
consideration of the evidence by trained military prosecutors, which is what my measure will provide. yesterday i proudly stood with retired generals, leaders of veterans organizations, and survivors who represent a growing chore -- mill and finally create the
independence, unbiased military justice system that the men and women who serve in our military so deeply deserve. leaders like retired general major general martha rainville. the first woman in history of the national guard to serve as an adjunct general who served in the military 27 years. including 14 years in command positions. she wrote to me, quote, as a former commander, endorsing a change that removes certain authority from the military commander has been a tough decision. it was driven by my conviction that our men and women in uniform deserve to know about any doubt they are valued and will be treated fairly with all due process should they report an offense or be accused of an offense. when allegations this serious criminal conduct, the decision whether to prosecute should be made by trained, legal, professionals. fairness and justice requires sound judgment based on evidence and facts independent of
preexisting command relationships. leaders like lori sutton who served as the top strisk in the u.s. army. she wrote say, quote, failure to achieve the reform would be a further tragedy to an already sorrowful history of inattention concerning military sexual assault. in my view, achieving these essential reform measure must be considered as a national security imperative demanding immediate action to prevent further damage to individual health and well being vertical and horizontal trust within unit. military institutional reputation, operational mission readiness, and the civilian military compact. far from stripping commander of accountability as some have suggested, these improvements will remove the inherit conflict of interest that clouds the
perception and too often the decision-making process under the current system. implea agreementing these forms will support leaders to build and sustain unit culture marked by respect, good order, and discipline. and lieutenant general retired kennedy, the first three-star female general in the army wrote, quote, having served in leadership positions in the u.s. army, i have concluded that if military leadership hasn't fixed this problem in my lifetime, it's not going to be fixed without change to the status quo. the imbalance of power and authority held by commanders in dealing with sexual assault must be corrected. there has to be independent oversight over what is happening in these cases. simply put, we must remove the conflict of interest in the current system. the system in which commanders can sweep his own crime or the crime of a decorated soldier or a friend under the rug.
protect the guilty and the serial predator and harms military readiness. .. accountable means there must be independence and transparency in the system. permitting professionally trained prosecutors rather than commanding officers to decide whether to take sexual assault cases to trial is measured first step toward such accountability. i have no doubt the command climate, unit cohesion and readiness will be improved by these changes. and brigadier general retired david mcginnis, who also served as a pentagon appointee, wrote i fully support your efforts to stamp out sexual assault in the united states military and believe that there is nothing in the mist justice improvement act that is inconsistent with the responsibility or authority of command. protecting the victims of these abuses and restoring american values to our military culture
is long overdue. is long overdue. it is because they love the military that they are making their voices heard, standing united behind survivors. i'd like to tell some of those stories because it's those stories that form the legislation. kate weber from protect our defenders awarded the 2013 women's veteran of the year and sarah plumber who came to washington, d.c. from colorado yesterday to tell their stories so that their brothers and sisters get military justices worthy of the great service to the nation. sarah was raped in 2003. she said, i knew the military was notorious for mishandling rape cases, so i didn't dare think anything good would come of reporting the rape. having someone in the direct chain of command doesn't make
sense. it's like being raped by your brother and having your dad survive the case. the horribly unjust case spoke months ago about this issue when our journey began. there was an op-ed this week, quote, regardless of all the promises by military leadership in the name of reforms, nothing short of removing the prosecutiontim's chain of command will end this nightmare." or trina mcdonald who was 17 and enlisted in the navy. she was stationed in a remote base in alaska. within two months, she was attacked, repeatedly drugged and raped by superior officers over the course of nine months. she said -- quote -- "at one point, my attackers threw me into the bering sea and left me
for dead in the hopes that they would silence me forever. they made it clear that they would kill me if i ever spoke up or reported what had been done." or listen to army sergeant rebecca harilla who served in afghanistan, was raped in 2007, reported the crime to her commanding officer. to her, it was unthinkable -- quote -- "there was no way i was going to my commander. he made it clear he didn't like women." or airman first class jessica himes who was raped in 2009 by a co-worker who broke into her room at 3:00 in the morning. she said -- quote -- "two days before the court hearing, his commander called me on a conference call at the jag office and he said he didn't believe the offender -- quote -- acted like a yeah, but there wasn't a reason to prosecute. i was speechless. legal had been telling me this was going to go through court.
we had the court date set for several months, and two days before, this commander stopped it. i later found out the commander had no legal education or background, and he had only been in command for four days." her rapist was given the award for airman of the quarter. she was transferred to another base. you also can't forget that more than half of the victims last year alone were men. blake stevens, now 29, joined the army in 2001 just seven months after graduating high school. the verbal and physical attack started quickly, he says, and came from virtually every level of the chain of command. in one of the worst incidents, a group of men tackled him, shoved a soda bottle into his rectum, threw him backward off an elevated platform onto the hood of a car. when he reported the incident, his drill sergeant sold him --
quote -- "you are the problem. you're the reason this is happening." his commander refused to take action. blake said -- quote -- "you just feel trapped. they basically tell you you're going to have to keep working with these people day after day, night after night. you don't have a choice." his assailants told him that once they deployed to iraq, they were going to shoot him in the head. quote -- they told me they were going to have sex with me all the time when we were there." now, this is the problem. there were 26,000 sexual assaults estimated by the department of defense last year alone, based on confidential surveys, but only 3,374 were actually reported. of those reported, 302 went to
trial. so if you are starting with 26,000 estimated cases and only 302 go to trial, that is a 1% 302 go to trial, that is a 1% if you are starting with 26,000 estimated cases and only 302 go to trial, that's a 1% rate of conviction in the u.s. military for the heinous crime of degradation, aggression and dominance of rape and sexual assault. 1%. and you just heard from these victims. there are too many command climates that are toxic, that do not ensure good order and discipline, that do not protect against rape and sexual assault, that do not create a sense that if i come forward and report that justice can be done. envious survey, this confidential survey the recent victims didn't report is they said they didn't believe anything would be done.
they also said that they either theodore witnessed retaliation. this is the problem. about 23,000 cases were not reported. 23,000 command climates the assaults are happening in victims feel they will not get justice. so i'm grateful for every reform we have put in place and this underlying bill. they are good, strong reforms that will help victims to report that every single one of them applies only to this 3000 cases. they apply to the cases that are reported for the command climates are sufficient that a victim feels i can come forward. i can at least report this case. in the 23,000 other cases, those victims don't have that confidence so madam president, if you don't create a transparent accountable system that is outside of the chain of command your hope of getting more victims to come forward forward and report so they can
at least weigh the evidence and see whether we can go to trial, it's not there. the hope isn't there. the confidence in an objective review by someone who doesn't know the perpetrator and doesn't know if it does not exist so while you have these 3000 cases and you have these 3000 cases that are reported in commanders did make sure one in 10 went to trial and when they didn't go to trail you had a 95% conviction rate so they're not making the wrong decisions about what case to try. it shows that only 3000 of these commands were strong enough. you can't train your way out of this problem. there are 23,000 that weren't strong enough but didn't ensure justice of retaliation. that's the problem. without creating transparency and accountability without saying that decider doesn't know the victim or the perpetrator. there is no bias because in too many cases as you heard from the
stories the perpetrators may well be more valuable to the commander, may well have several tours of duty under his belt. may have done great acts of raver and may well have two kids and a wife at home. that commander looking at the case files says we can't possibly have it. it didn't happen this way. he waives the evidence differently than someone objective who is trained, who actually knows the difference in these crimes and knows what a rapist. they know that a rape is not a crime of romance. they know that a rape is a crime of dominance. they know that a rape is a crime of violence. it's not about a date gone badly. it's not about hormones. it's not about a hookup culture. it's actually a crime that is brutal and violent committed by
someone who is acting on aggression and dominance and violence so that is why the training matters madam president. i want somebody who knows that who has been trained as a lawyer who understands prosecutorial discretion and can weigh the evidence. objectively. so, we have to look at who is advocating for this bill. our veterans organizations iraq and afghanistan veterans of america want this reform. vietnam veterans of america want this reform. service women's action network want this reform. they are all speaking in one voice and they say quote a vote for an independent and objective military justice system is a vote for our troops and a vote to strengthen our military. they know. they served. they are veterans. they are no longer active duty. they can speak their mind. this week we released a letter of 26 retired generals,
admirals, commanders, colonels captains and senior enlisted personnel including two generals and to admirals known as flag officers who are seen to congress quote we believe that the decision to prosecute serious crimes including sexual assault should he made by trained legal professionals who are outside the chain of command but still within the military. this change will allow prosecutorial decisions to be made based on facts and evidence and not the derailed life pre-existing relationships attitudes biases and perceptions. it is our sincere belief that this change in the military justice system will provide the opportunity or real progress toward eliminating the scourge of sexual assault in the military. i am hopeful madam president that our colleagues will listen to these collective voices because nobody knows the military and what needs to be done to fix this broken system
than they do. listen to the victims who have clearly told us over and over again how a system that only produces 302 prosecutions out of the dod's estimated 26,000 cases of rape, sexual assault and unwanted sexual contact last year must be fundamentally changed to restore trust and accountability. these men and women of america's military had put everything on the line to defend our country. each time they are called to serve the answer that call but too often these brave men and women find themselves in the fight of their lives not on some far-off battlefields against an enemy but right here within our own soil within the old ranks, with their commanding officers as victims of horrible acts of
sexual violence. sexual assault is not new but it has been allowed to fester in the shadows for far too long because instead of the zero tolerance pledge we have heard for two full decades now since dick cheney was the secretary defends using those words in 1992 what we truly have mr. president is zero accountability. there is no accountability because the trust that any justice will be served has been irreparably broken under our current system. we are commanders hold the cards over whether a case moves forward or not through prosecution. there are those that argue that removing these decisions out of the chain of command into the hands of independent prosecutors in the military will diminish discipline. this is not a be a radical question. we actually know the answer to this.
we have made these reforms and they have not seen it diminishment and discipline. the u.k., israel, australia, canada, the netherlands, germany all of them have taken taken the decision-making of whether not to prosecute cases outside the chain of command for civil liberties reasons. some instances the victims rights to make their justice system better. we could use a better justice system. we could use that transparency and accountability here. we have a unique problem. i think this reform solves our problem. the director general of the estonian defense force legal service paul cronin said that australia has faced the same set of arguments for military leaders in the past. quote it's a little look we opened up to in the military. there's a lot of concern at the time there were issues that
surprisingly there haven't been any. there are those who argue that our reform -- there are those that argue that our reform would somehow take the matters off the hook or they would go no -- no longer be accountable. let me be clear, there is nothing in this bill that takes commanders off the hook. they are still the only ones responsible for setting command climate for maintaining good order discipline for making sure these rapes and assaults don't happen, to making sure there's no retaliation if the victim comes forward to make sure it's sufficient so when they do come forward. this is a legal decision and actually most commanders never get to make this legal decision. your platoon sergeant, your journal sarge and they are never going to be the convening disposition authority. that is not their job but they still have to maintain order and discipline. they are on the hook and the underlying bill is strong to
give them one more tool to help them set their command conduct. there are those who argue that this reform will cost too much. i do not know how you could possibly say that in cases of prosecuting rape in the military costs too much. our men and women in uniform are worth much more. not only do these critics ignore the fact that we are to have -- and our military. the financial cost of sexual assault in the military, the rand corp. has estimated that this scourge costs $3.6 billion last year alone. there are those who say
commanders move forward on cases and civilian prosecutors won't. to claim that keeping prosecutions inside the chain of command will increase the prosecutions is not supported by the statistics. because if you only have 3000 or so cases being reported and 23,000 cases not being reported under the current system, if you change that system in those 23,000 cases start becoming reported cases you will have more prosecutions. you would have more convictions. you would have more justice. the bottom line is really simple the current system oriented around the chain of command is producing horrible results and has been producing horrible results for 25 years. the current structure is
producing 1% of cases that go to trial. that is not good enough. it is not a system that is deserving of a sect of thighs that the men and women in uniform give to our country every single day. it's also contrary to the fundamental values of our american justice system. our justice system relies on the fact that a decision about whether to go to trial is never made on bias. it is always made on facts and evidence. it is not made on whether it's good or not for the commander. it is made on earth that is serious crime has been committed. to all those that say this is a radical idea that should wait in some next year, the dod has an advisory panel that actually has opined for the past 50 years on the status of women in the
military. that panel had a vote on these proposals and they voted in favor overwhelmingly with no one against. of the 10 votes, that we had, nine former military, for high-ranking officers and generals. the nonmilitary voice is ahead the head of the louisiana law center, knowledgeable individuals who are tasked by the department of defense, hand-picked by the department of defense to opine on the status of women in the military and they have voted to sub work these measures. secretary hagel has said that he quote places a great premium on the voices of this panel. i have not come to the conclusion that we need to fundamentally reform our military justice system in order
to strengthen it. but this is a commonsense proposal. it's not a democratic idea. it's not a republican idea. it's just doing the right thing. if you listen to the survivors, veterans, retired generals and commanders they believe this change is needed. but even our current military commanders at the department of defense do not dispute the problem or the facts are there reason for the problem. the commandant of them are in court general james and i said earlier this year that victims don't report these cases because quote they don't trust us. they don't trust the chain of command. they don't trust the leadership. we have to restore that trust and if you have too many commanders into many command climate that 23,000 unreported
cases where that trust is broken, you are not going to fix it by keeping it with the commanders. that is the problem or if this is the fundamental problem. listen to the chairman of joint chiefs of staff general dempsey who said that the military is sometimes quote too forgiving end of quote in these cases admitting bias in the system towards decorating officers. mr. president, i firmly believe it is our obligation to restore that trust, our fundamental duty as senators, as members of congress to provide the needed oversight and accountability over the armed services. we should not do with the generals are telling us to do. this is our job.
every time i meet with a member of the military, i am overwhelmingly grateful for their service, for their sacrifice, for their courage. they deserve better. they deserve a military justice system that is consistent with our core fundamental american values of objectivity, of church , of evidence, of fact and of justice. i urge my colleagues to support my amendment. i yield the floor. >> mr. president i ask unanimous consent that any time spent on quorum call during this debate on the sexual assault issue be equally divided between senator
senator gillibrand on one-sided and senator ayotte and senator mccaskill on the other side. >> without objection. >> and i would yield five minutes of senator ayotte's time to the senator from missouri. >> the senator from missouri. >> the think you senator mccaskill might colleague from missouri for yielding. i want to thank senator mccaskill and senator gillibrand for the focus they have made on this issue. they have clearly been at the frontlines of changing the underlying bill. two things that senator gillibrand said that i want to agree with you the underlying bill is strong and it's a step in the right direction and the a result of our committee debate, our committee action and i think i heard the senator from new york say she was hoarding the mccaskill amendment which adds even additional things to that and i also am supporting the
amendment. it does a number of things that i think make the bill even stronger. it says the commanders reevaluated based on this is one of the factors. no longer will this just be something that happens to come up. we talk about it but the commanders will be evaluated based on what they did to the change the command atmosphere, but they did to protect people against sexual assault, what they did to create an atmosphere where these things not only happened that when they do happen are vigorously dealt with and looks to as something that has to be dealt with and the commanders be evaluated in that way. there is another way of reviewing the mccaskill amendment. if the commander disagrees with something that is happened in this process, they have to pick that review up another level. the so-called good soldier defense no longer a defense. this is about this incident,
this assault, this accusation and dealt with solely in that way because the this additional amendment that i think many of us will support it will be added to what is already a strong underlying bill. this amendment would allow victims to express a preference whether they have pursued in a civilian trial or a military trial a court-martial. those are all good editions and i think that is why senator mccaskill for president way they senator from new york and i would be supporting the amendment. i believe that the amendment improves with the committee did but i think the committee had a full debate and is long and vigorous debate on how fortunate is the commanders be involved. senator mccaskill my colleague from missouri has been a leader on this all of her time in the senate. she came to the senate. one of the things in her background was a county
prosecutor but specifically a prosecutor of sexual assault cases. i have relied on her judgment as we have looked at these issues and i think her judgment is worn out by so many things we heard in the committee. senator ayotte who will be here speaking with this amendment and for the underlying bill for the mccaskill amendment and the underlying bill. senator fisher also on the armed services committee will be part of that debate. we introduced a bill, the armed services committee did, that has the most comprehensive legislation targeting sexual assault that has ever been considered by congress. we add to that these important elements of another mccaskill amendment. 26 provisions are in the underlying bill that deal with this issue. it was among the most difficult decisions but also one of the
most important decisions. the idea that commanders would have responsibility for the atmosphere they create. one of the things that was mentioned more than one is what finally happened as we integrated the armed forces. president truman, i stand here by his desk one of our predecessors in the senate from missouri signed the order that integrated the armed forces. president eisenhower pursued a are there but only when the command structure was given absolute responsibility to deal with what would become a real problem as there were even race riots on ships according to senator mccain to talk to us about this. it was when the commanders were given the responsibility to see that this problem was solved, that it was solved. i think this bill and the additional amendment that i will be supporting, the mccaskill
amendment really clarifies in new ways how important is the commanders except this is part of their command responsibility. the numbers that senator gillibrand talked about are totally unacceptable, totally unacceptable and one of the things the commanders will be evaluated on in the future will be what they did about changing that environment. i think actually taking them out of the command responsibility in this area in my view makes it less likely, not more likely that the atmosphere will change. then you are down not just to the atmosphere -- one additional minute? i will just take it from her time if no one objects. the fact that this is in the bill, further improved i believe by the amendment but clearly says we are going to change the culture of the military and that would not be nearly as -- it would have would have been for the hard work of my
colleagues particularly senator mccaskill and senator gillibrand. they are here in the floor talking about difference a difference of opinion not on solving this problem but we all believe this problem is going to be solvent we believe the bill takes a significant strong step toward doing that. i think most senators are going to agree that the mccaskill amendment adds another element there and i'm glad the defense committee, the armed services committee and now the united states senate is taking additional deaths to solve this problem. it's a tragedy for every individual, in a military man or woman who is than if it some him of sexual assault reported or not. whatever we can do to see that they reported and minimized and ended is what will happen and i hope this bill does that. i believe it does and i'm pleased to be part of bringing this bill to the floor and i will be pleased when i think the mccaskill amendment will be added to it today and we face a new view of how this issue is dealt with and i think the
senator for your time. >> mr. president? >> the senator from missouri. >> i want to thank senator blunt for his comments and i pursued his hard work on the armed services committee as we tackle this issue that all of us have an emotional commitment to for all of the right reasons and i wanted to hang senator gillibrand. we both want fundamental reform and we both are working as hard as we know how to get it. we have a fundamental as he meant about how best to obtain that goal and i would like to go through some of that disagreement for the next few minutes. the 26th historic reforms in the bill are going to make our military the most victim friendly criminal justice system in the world. in no other system does save the half the protection and the
deference that we are creating for them in this bill. my years of experience handling these cases, hundreds of them, victims. if that victim had the confidence of independent advice that would have made a tremendous difference in the staggering number of victims that refuse to go forward. this is the most personal painful moment of anyone's life and make no mistake about it, no matter what we do in this chamber and no matter what this bill accomplishes, we will never be able to get every victim to come forward to cuts of the nature of this horrific crime. and we have to do better. like senator gillibrand, i have talked to dozens and dozens and dozens of victims. i have talked to prosecutors and spend hundreds of hours with
prosecutors, military prosecutors, women and men, veterans, commanders active and retired and just like there is not agreement among all the women in this chamber, there is not agreement among all the victims. there is not agreement among all the veterans and all the commanders of the most women commanders have acknowledged that even though this sounds seductively simple, it is much more complicated and we will create more problems than we will be solving if we make the change is advocated i senator gillibrand. let's get at what we are trying to do. we have no disagreement that there are too many of these crimes and that they are not reported enough, complete agreement. the goal here is how do we get more reporting? there is a eerie that if we do
this, if we take this decision away from any command at all to go forward, that will magically have the victims come forward. senator gillibrand talked about our allies. i am grateful that we have their experience because we can look and see what happens. our allies have done this and not in one instance has reporting gone up. we know this is not the silver olive because if it were you would have seen an increase in reporting in all the countries that have adopted this system. and the response systems panel put in place by the armed services committee to recommend to the pentagon changes in this area, we know they have formally acknowledge that our allies, many of them did this to protect defendants rights have not seen an increase.
and if this theory is that reporting can only go up if we do this, why are we seeing a spike in reporting right now? 46% increase just this year over last year. that is because some of the military are already putting in the reforms that we are codifying in the underlying bill. they are getting fit dems lawyers in ramping up the protection and information of deference they give victims. that is the single most important fact-based on all of my experience that will dictate whether victim has the courage to come out of the shadows. and then finally it will stop retaliation. that unit is still going to know that the crime is reported and keep in mind currently under our
reforms the victim does not have to report to the chain of command. right now, the victim does not have two report to the chain of command. many of my colleagues did not realize that. a victim has many places they can report this crime. they can get a lawyer and have that level of protection immediately. they will have the information that they don't have to report to the chain of command. i'm trying to understand how reporting and investigating and deciding a half a continent of way the group of lawyers making that decision somehow stops retaliation. how does that keep the people in the unit from acting inappropriately toward you because you have reported a crime? there is nothing magical about that. in most instances the word will get out. in most instances and it's common sense. you are back in your unit and
you then assaulted. which way are you going to have more protection? if a group of colonels for half a continent away are looking at the facts of the case or if your commander has signed off? of course if your commander has signed off because that sends a message to the unit, we are getting to the bottom of this. and probably the most telling fact about this debate is, is this happening now? now outside investigators investigate these cases and make recommendations. we have that in our system now so the question is, if these outside lawyers are recommending that we go forward based on the independent investigation are commander shutting them down and? are commander saying you've will not go or were? no one can find me a case where
that happened. where the prosecutor said we need to go and the commander said no. on the other hand, over the last two years, 93 separate times has the outside lawyer said you know, this case is too weak. this case doesn't have enough facts. 93 times and do you know what happened in every one of those cases? the commander said we are going to get to the bottom of it. almost 100 thick dems in the last two years would not have had their day in court. under senator gillibrand's proposal because in senator gillibrand's proposal when the lawyer says no it's over. whereas in our proposal, if this were to ever happen even though we know this is not a problem now, we have review after review
after review. no one is going to be able to turn a victim away from her day of justice without accountability, checks and balances and oversight. and there will be a difference in that unit because now retaliation is a crime in the commander is going to be evaluated. on how they are handling this issue within their command. there are also practical problems in some of my colleagues will come to the floor today and talk about this but there are a number of implementation issues that i don't think have fallen through and this is real world here. we are talking about appeals and challenges. we are talking about not even having enough colonels right now to staff this. we are talking about risking the
ability to get a speedy trial. we are talking about eliminating the ability to plea bargain and let me just tell you mr. president having handled these cases, i think people sometimes make the assumption that a plea bargain is about copping out. it's about not protecting the victim. i can tell you, talk about stories of victims, i can tell you story after story of real people that i dealt with that came forward and said now i think i can do this and one woman i will never forget came to me and said my mental health counselor says testifying in court would set me back so far i can't do it but can you get something on a? can you get something on him? in those instances do you think the defense lawyer is going to plead to a sexual offense? or even a serious offense? we were many times able to get something on them so the next
time if it happened we at least have a better shot. many times plea bargains are to hated life of victims. the practical way this will be implemented, and these are military prosecutors telling me this that it will really limit to process concern. in her proposal is outside lawyer picks anybody. fix the defense lawyer, picks the jury, picks the prosecutor. how is that going to stand up to a due process claim? it's not clear who picks the judge. that is left silent. i don't know who picks the judge. it is not clear. that's another question. who is going to decide who's going to actually be the judge? eliminates the option of the nonjudicial punishment. take the case of the air force airman who was just recently tried in a civilian court.
he was initially charged with the sexual offense and arrests reduced to simple assault. if that would have been within the military they couldn't have done that because it wasn't a serious offense so goes back to the convening authority within the command and then that soldier knows they're not going to do a trial. they can't and all it has to do is turn down nontraditional punishment. some of these difficulties will be explored in more detail as i said throughout the day but here's the one i don't understand. if you believe deeply in the policy that you are advocating, why in the world would you proactively limit the ability to resource its? in the language of the gillibrand amendment it actually says there shall be no funds authorized for this, no personnel authorized for this. and the military has estimated
over $100 million a year just in personnel costs because they have to create a completely different system outside the system they currently have which will still be some offenses related to the military that are low-level offenses but we have to have a whole new system for arson, for robbery, for theft, for murder, for sexual assault and yet she practically and her amendment says we can't resource it. that is truly one that makes me scratch my head. there is a lot of problems surrounding this amendment but what we emphasize our rules are the same and their motives are pure. we believe, and we believe this is worn out by the data, we will have more prosecutions because
it will be very easy for lawyers a long way away overworked, underresourced to say you know this is a consent case. it's a little messy. but that one go. and then it's over. let me briefly talk about what we have in our amendment acus is also very important. once again, it empowers victims further and our amendment allows victims to formally way and whether they preferred it if there is jurisdiction for the civilian authorities to handle the case in addition or whether they would rather have the military handle it. it strengthens the role of the prosecutor because it provides another layer of review of the prosecutor's decisions. it increases the accountability of commanders evaluating it on their forms and eliminates the good soldier defense. it is irrelevant whether someone
is a good pilot or if they have or raped someone in the military and our amendment will make it irrelevant. i want to thank president for your time. i know we have others on this and i will be happy to be back later in the day to talk about specifically some of the other issues in this bill. i do not see anyone else here right now so i would suggest the absence of the a quorum. >> the clerk call the roll. the mr. alexander. the mr. president? >> the senator from new york. the i'm denying janice i asked the corn coffee vitiated. i have request for committees to
return to the session of the senate that have the approval of the majority of minority leaders and i asked that these requests agree to and be printed in the record. i ask unanimous consent that my military fellow bridget byrne's be giving privileges during the consideration of the defense authorization bill. as we wait for our colleagues to join the floors they can at their floor time. i wanted to address a few of my colleagues concerns. some of the technical concerns that she raised we actually took some of those concerns and revise them in the bill that has been presented so some of their concerns have been actually fully addressed. for example her concern about the convening authority and the disposition authority are bill is very specific. the disposition authority is the decision-making authority. that goes to the trained military legal prosecutor that j.a.g. council so they can make the decision whether not to proceed to trial and evidence that the convening authority
which is a different duty is left intact as it is so the convening authority will decide judges juries in the details of what the court and the trial will look like. it's two separate authorities in two separate places. that is clarified in the bill so there's no concern there. one of the concern that my colleagues raised is this issue of nonjudicial punishment. our deal is very specific. we exclude 37 specific crimes including all article xv crimes, all of the crimes that you would using nontraditional punishment to enforce and if the disposition authority decides they do not want to prosecute the case because they don't have enough evidence to go forward it goes direct back to the benefits of the nonjudicial punishment to do whatever kind of punishment he or she thinks is appropriate. so those are two technical issues that she makes that are very important to clarify. the third issue that senator
mccaskill has raised that i think is a misunderstanding of the bill is about this world the way problem. today in our bill compared to the current system, the reporting is exactly the same. you can rip cord anyway. you can report to your chaplain. you can report your friend. you can report to the nurse or the doctor. that is not changing. you're reporting is exactly the same and what also is exactly the same as your investigation. investigators will be sent to investigate the case whether in iraq, whether in afghanistan or germany, whether anywhere. it doesn't matter this world away because investigators go to you. it's not a different set of investigators. >> the the exact same same of this set of investigators and commanders are responsible to make sure those investigators do their job. the commander has to be making sure the unit is not retaliating
and has to ensure the investigator has access to the evidence. he has to make sure that the command climate stay strong and there is good order and discipline. that never changes. those commanders are always responsible for discipline and command climate. the only difference under this bill is after the investigation is completed and there is a file of evidence, it doesn't go sit on in 06 commanders desk. and 06 commander is colonel and above. he may not even be in afghanistan or germany. he may not be exactly where that crime has occurred. the 06 commander will look at the file and decide as a crime they committed and is there enough evidence to go for it. you said that commander making that decision is bill proposes there will be a trained military prosecutor so it doesn't matter what test the file goes on. the person -- what matters is that person is
trained and understands the law, understands the nature of the crimes and can weigh the evidence and make a decision based on the evidence not whether he likes or doesn't like the victim or values or doesn't value the perpetrator. those biases are white are affecting the system negatively today. so that is why the world away is not a concern because the investigation proceeds exactly if it ever has. the only difference is that goes on to make the ultimate legal decision. and then last back to the issue of whether commanders are being held accountable. commanders are held accountable. we have an edifying bill not only is retaliation now a crime but they will be measured as senator bond said on whether command climates are strong. is your command climate strong enough to make sure these rapes are and have an inquest is a strong enough so retaliatiretaliati on of the victim doesn't happen and does your command strong enough to that he or she believes that
justice is possible? i don't think it's appropriate you were holding a commander accountable based on whether uac evidence properly. it is based on is there enough evidence to show crimes are committed. it's not a decision based on how tough you are on crime. it's not the measurable. commanders will be held accountable for the command climate for good order and to when and whether to make a legal decision up at the colonel level is not terminated of whether or not they did their job and the commanders who are getting an opportunity to make those legal decisions are not doing a bad job. of the 3000 cases reported one in 10 went to trial. that is not a terrible ratio and the ones that do choose to go forward 95% conviction rate. i agree in those cases where commanders have moved forward some of those cases they convict
and some they didn't than those excellent opportunities for victims to be heard but we don't want just 100 marquesas going or if. we want tens of thousands of cases to be reported so that the chance to to go forward. it's the difference of thousands and that is why i feel this reform is so necessary. still in light of all the amazing with arms and the underlying bill is still think it's necessary because the crisis of confidence is so real and so present.
see a typical day began with her coming in the morning probably around 9:00 and she with him in toting a straw bag in each hand filled with some of the things you see on her desk as that she had taken home for signing, or speechwriting or event planning or whatever she was working on. she would come in and get to work. her desk was always very orderly and as she worked on her desk with letters that she was processing as she completed thing she would put them on the floor. she loved this office because she could look out at her alma mater to the capital in the city she loves so much. we had three office death at of the time. we had a person who handled her calendar. we have person it came from the
white house as a press secretary who got to work on speeches and then i was in the office. by friday afternoon she was ready to leave and go to the ranch which she really called home and at the three-time the 30 in the afternoon she would say do i have anything else to do? if the answer was no she would say tell the secret service i'm ready to go. the georgetown university law center looked at proposals to change nsa programs. speakers including jim sensenbrenner review the patriot act. this is two and a half hours. [inaudible conversations]
>> good morning. it's my pleasure to welcome you to georgetown university law center. today marks the second discussion of the law schools three-part series on the past, present and future of surveillance and foreign intelligence gathering in the united states. in october we can being former members of key staffers from the church committee hearings and looked at the origins of the it surveillance intelligence act. today we are focusing on current bills currently before congress that would reform the foreign intelligence surveillance court and alterations for the foreign intelligence surveillance act as well as cases currently working their way through the courts.
our purpose and meaning the program today's move the conversation forward and to think about what framework and principles should guide us as we look to the future. we are now as all of us recognize attic critical juncture. technology is rapidly evolving and it comes as tremendous benefits that makes us more efficient. it creates the opportunity for growth and new discoveries. it offers new ways of connecting people, the groups, societies and nations and is also ripe for abuse. it creates opportunity for exploitation and organized crime, terrorism and open warfare. so how do we mitigate threats and reap the benefits and remained true to our founding principles? this is one of the defining issues of our age and it's one of the aims of georgetown law and the center for national security law to bring together
individuals who thought long and hard about the difficult questions of law and policy and through open dialogue to move the conversation forward. today, 21 bills to report to congress. some bills call for the legal standard to overcome collected information. many address the make up of the fif seed from its ability to bring in experts to advise the court to the selection of judges to the court. nearly all imposed new reporting and disclosure requirements to congress, the public or both. so the question is, how should congress precede? 21 bills, nearly a dozen cases are made in their way through the courts. how should the courts ruled? what should be the shape of the
future? as we think about these issues, today it's a great pleasure to welcome some of the most respected individuals to georgetown law to discuss these issues. now our panel will be moderated by professor donohue a full professor at the law school and the director of georgetown center for national security law. it's been an extraordinarily important voice in this discussion. professor donnie has written extensively on counterterrorism on the united states and indicted kicked him and held fellowships at stamford law center for constitutional law stamford university center for international security cooperation and harvard university's john f. kennedy school of government where she was a fellow in the international security program as well as the executive session for domestic preparedness. in 2008 to 2009 she coached for judge john noonan for the ninth
court of appeals and a life member of the council of foreign relations and the aba standing committee law on national security. she obtained her a.b., her j.d. from stamford law enter ph.d. in history from the university. thank you very much for monitoring and doing so much to make a serious possible. it's an extraordinarily important discussion. i also want to thank our panelists. professor donohue will be giving about round on each of them but we are joined by the director of the center for democracy at the american civil liberties union, robert pollitt director of national intelligence vacuoles matthew olson director of the national counterterrorism center and mark rotenberg executive drifter of the electronic privacy information center. ..
includes the committee on science and technology and the committee on the judiciary. and the chair of the crime as part of this oversight committee and subcommittee is on environment and oversight. he is the former chair of the judiciary committee at a long committee. he has established a strong record on crime and on intellectual property and nonconstitutional choices. congressman john sensenbrenner served as well where he solidified his reputation as an independent leader on science issues as well as oversight. throughout his public life, he has been on the forefront of efforts to preserve the sanctity of life and eliminate wasteful government spending and protect the interest of american taxpayers. he has been cited as one of the most fiscally responsible members of the house and is
well-known toward completing his disclosure forms. anyone who has ever completed a financial disclosure form really knows that that is an extraordinary achievement. and he is proud of all the legislative achievements that have helped improve the tenure in congress and after the attacks of september 11, he introduced the patriot act and the house as a method to help keep america safe by enhancing the tools that are law-enforcement can use to support another terrorist attack and he was instrumental in the passing of child abduction prevention act, which he signed in 2003 in this enhanced the amber alert system and strengthen penalties against kidnappers and eight law enforcement and protecting children as well. he has also introduced the child protection and safety act was expanded coverage of the national six offender registry
in compliance with strict requirements to keep this information current. to ensure that the gains made by minorities are not jeopardized, and he introduced legislation to extend the voting rights act for 25 years, which was later signed into law and he is a major voice on the issues that we are thinking about today and it really is an honor to present to you congressman john sensenbrenner. [applause] >> thank you. it certainly is a pleasure to be here today to talk about an issue that i think is on the front burner, particularly in light of all the revelations that have come out about what the nsa has been doing nonetheless, the last several months. and once i am done with this issue, my next project is to try to constitutionalize those parts of the voting rights act that were struck down by the supreme court at the end of its term
last june because the voting rights act, i think, it is the one that has been the most effective of all of the important civil rights laws that were passed during the 50s and 60s and have been brought up to date since that time. so even though i am not a full committee chair, i am keeping my hands in the pie and attempting to deal with issues that i think are important, not only to security and safety of this country, but to improving the quality of life for all of the people in the united states of america. i would like to thank georgetown law for inviting me here today. following september 11, is chairman of the house judiciary committee, i was the primary author of the usa patriot act. our goal was to ensure that we have the proper tools to combat terror in the post-9/11 world. i stand by the original intent of the law and it is this that
has been misinterpreted by the obama administration and congressional oversight has also fallen short in the balance between civil liberties and national security is, which we felt that we had been tainted. the senate judiciary committee patrick leahy, who i understand spoke at a session includes a usa freedom act to rein in the spying on innocent americans while maintaining the necessary tools to enhance and ensure our security. the patriot act had 17 provisions. i insisted that all 17 the sun said it so that they would expire automatically they were not reauthorize. and after having hearings on 17 of these provisions in 2005, congress determined that 14 of the provisions were noncontroversial and made them permanent law. the remaining provisions sunset
in 2015 and will expire in if they are not reauthorize. one of those provisions in section 215, the so-called business records provision and it allows the government to apply to the fisa court to obtain tangible things that they are relevant to an authorized investigation into international terrorism. the administration use this to justify the collection of records of innocent americans. the administration argues the request for every phone record is relevant because the universe undoubtably contains relevant information and her original decision authorizes this with analysts that know that's heresy also located somewhere in the billions of data bits and they
can't know exactly where. and we recently found that the administration has justified the collection of records related to every financial transfer that americans make. and the government collects and stores these records and assesses them based on criteria established, a standard adopted in secret and this includes anything debated on by the congress and i will repeat that. a standard that was adopted in secret and unrelated to anything that was debated or voted on by the congress. the administration's argument is a reasonable reading of section 215. if anything is relevant, then the term relevant ceases to have any legal significance that congress intended to allow the selection, they would have authorized it. and instead we have attempted to set limits on what the
government could obtain. the approach also subverts congressional intent. because the this is abrogating its responsibility to determine whether the administration is entitled to access records that it is authorized in this includes an arbiter and said the administration collects everything and decides for itself and is change the law in secret. and without transparency, there is no balance. it evolves and nothing more than trusting us, but you don't have the tools to verify it.
senator leahy and i propose the freedom act not only because the intelligence community has lost our trust, but because the american people are custodians of their government and this ends dragnet collection under section 215. it raises the standard that the government must meet to obtain a court order or tangible things and ensures that the records that the government attains are relevant to the government's investigation. it adopts a uniform standard for federal collection by applying the trap and trace devices and national security letters, taken together, these force a fundamental shift in how the intelligence community collects
data. rather than allowing the government to collect everything and then determine what they need, the freedom act requires them to show a need for the records before they obtain them. not only will this protect civil liberties and restore trust in the community, but the changes will focus national security professionals on actual threats and it has never needed both collection programs to usa. they should pursue this not through haste the acts of our private data. section 70 to allow his the wiretap foreigners outside the united states without a court order. and because it will close this backdoor access to american communications by requiring the government to obtain a warrant
before searching american communications inadvertently obtained under section 02 -- excuse me, 702. it also strengthens prohibitions on reverse targeting to ensure the administration does not target foreigners as a pretext for collecting data on americans who may cause internationally. as we have all seen, tighter standards are meaningless without better oversight and the freedom act also addresses the origins of the problem. this currently operates in secret after hearing only from proponents of the request. our judicial system is based upon adversarial model. the freedom act brings this regard by creating the office of special advocates and the special advocate is charged with protecting individual rights and civil liberties and ensures that the judges benefit from opposing viewpoints. title iii also adds publications
that contain a significant construction or interpretation of law to the greatest extent possible. in this includes companies who work with the government are protected and private companies are currently barred from disclosing basic information about the requester information and the assistance that they receive from the government. with the support of the tech giants, it has increased transparency by giving internet and telecom companies the ability to publicly disclose the number of national security letters, as well as how many orders were supplied. and it also will allow the companies those whose information was demanded under the fiscal orders and national security letters and in a joint letter, microsoft and apple and
yahoo and facebook, aol, google, and linked in wrote that transparency is a critical first step to an informed public debate, but it is clear that more needs to be done. the companies believe that government surveillance practices should also be reformed to include substantial piracy protections and appropriate oversight and accountability for those programs and the senate intelligence committee voted for the first time to allow unrestrained spying on americans. the committee created to collect oversight on the programs and has advocated leadership and responsibility. we are committed to a different approach with over 100 cosponsors covering the political spectrum, i am confident that we will work
pragmatically to continue towards the balanced approach supported by americans and businesses and our friends abroad by passing the usa freedom act into law. we thank you very much and i'll be happy to field questions until the professor gives me the hook. but i would ask that everyone approached the microphone who asked the question so all of us can hear you and at the beginning, please state your name and if you have any kind of professional affiliation, state that also. would like to be first? and thank you. >> my name is john miller and i am retired. [inaudible question] >> i am part of the senate intelligence committee and the
usa patriot act was passed and i had changes in the administration's original proposal and i recall sitting down and saying that we have to have a court order and it can't just be relevant to all intelligence, relevant to counterintelligence. in this includes how you advance to the arguments and the information necessary to understand that there is now a different intent for section 215.
and how that completes of how the legislative process can produce this legitimate action that should be acknowledged as a congressional action in this sense. >> let me say that the original patriot act does not include a relevant standard and there is a request when it was reauthorized in 2005 and 2006 to include a relevant standard in there. but i think that practically everyone in this room with a few notable exceptions would say that inserting the word relevance into a sentence that does not contain a before it was limited meant that it restricted it rather than expanding it in the administration was put in and basically turned the logical
meaning of the word on its head. meaning that i flipped the coin over rather than limiting it, it was expanding it. so let me just say that i was not privy to any of this information that was given. and i have limited my participation in secret briefings. the reason i have done not, and i have been in congress a long time, is usually in these classified briefings we find out stuff that was part of "the washington post" when we are times in the previous days and this was an attempt by the intelligence community basically by the intelligence community to shut us up. he disclosed that information which was already in the public record and in a publicly available newspaper, we could be prosecuted for secrecy and
committing a felony. and i am not going to get myself into hot water by such a debacle as that. and when i was the chairman of the judiciary committee, mr. conyers, who is my ranking member and successor as chairman, he and i sense that we have the oversight letters to the justice department, if they were not responsive, we acted crabby and saying that you have an incomplete and we need to try it again be responsive to a question and we've been put up the nonclassified part of the answers on the committees website. and this was by partisanship that worked as well. after i left this and it ended up that we ended up being
cheerleaders for the justice department in the nsa, rather than providing the oversight that was necessary and now we are paying the price is a country for a and we are going to have to change the law to stop this from happening again. so i hope that answers your question and you won't be a crabby professor to meet. >> thank you. we appreciate how we have achieved the government of the people by the people and for the people. >> i thank you for that. i think the more appropriate day comes when there is a decision when we have an up or down vote on the freedom act and i'm willing to bet you that if we get that, we will win. [inaudible conversations]
>> i am curious if you could please speak and you must have talked about the evidence where there are cases where it might be one where authorities are stopping to preserve that type of collection. >> obviously was a target in there could've been a 215 order under the freedom act and under the congressional intent that we originally thought that the patriot act had. so the answer to the question is yes, there is the legal authority to do that. but the only real person who identified by this according to
public testimony -- and i may be wrong, but my recollection shows me that he was convicted not of conspiracy for terrorism, but some kind of a financial crime when he was actually prosecuted. and the thing is if that is the case and i get a little bit worried about a, because then the patriot act is currently interpreted and it can be used to prosecute people who have no relationship to any type of international terrorism because the mega data is in those records can be used to prosecute people for financial crimes that have no relationship whatsoever to terrorism. >> okay, so we will follow up on that and history has shown a lot to disrupt the terrorist plots
with immigration violations and other non-terrorism related offenses and so how does the valuable collection get preserved under the freedom act? not all of these are going to come to light in the american public can't get to know this come but we do know that it works effectively to help aid in the disruption and prosecution. >> my answer to that is that there are trillions of records of innocent americans that are being scooped up and if you want to go entirely on the side of national security, yes, but the nsa can continue to do then let them what they are continuing to do what they are doing as well. and this includes one of the reasons which have made our country unique and has allowed
it to survive for over 200 years and i am trying to strike a balance and i thought that was struck with the patriot act and left early and never would've passed in september and october of 2001, had there been any information that would've would have authorized both. and i'm saying that as it would authorize this, it would have been shot down by an overwhelming vote because the votes weren't there for them. >> next question? >> sumac we have time for one more. >> good morning. i am a student who is in line i'm wondering if you see section
702, and also protect american businesses. >> the bill does amend this, section 702, in terms of european citizens, the weekend before last, we have gone to brussels and we had extensive conversations with members of the european parliament and i also that had both of this as well as those representatives of the u.s. businesses. and i was accused of giving a bad answer and my answer is that the european commission member
is due to have a negotiation with the attorney general holder this weekend and how we perceive on that issue depends upon the outcome of those negotiations. and what i will say is without an amendment through this you have businesses starting with the tech companies and in the telecom companies that are going to be losing a lot of business in europe. and i heard about this again and again from different representatives and one of america's most popular exports is the information technology that has been applied to telecommunications and it certainly does reduce the u.s. bombs deficit and that is why in my opinion, this issue has to be
resolved if we want to protect international trade and where we have been doing the best as americans in europe. and so i await to hear from the attorney general and the commissioner and i want to hear from both of them. so that i don't get spun into the wrong direction and that is why as a lawyer i do believe in adversarial proceedings rather than a learned presentation and that is usually where trouble starts. >> thank you. >> thank you very much. one that i will abuse here as the privilege of moderator is yesterday that the documents that were released showed that the e-mail metadata was conducted under the patriot act. so how do you address that kind of metadata collection?
>> it increases the standards this standard as well as the use of national security letters to the same standards that has been required to get a fisa order under section 215. what i can say is that when we were jointly doing this oversight, the testimony was 215 was very sparingly used during the period during 2006. but as a national security letter requests, we are rolling this off at a rate breakneck speed. it is the hope in which if we fix this, they don't have the other types of provisions in the patriot act to do what we thought that we were doing for
the other laws. >> i hope that you will join me for taking time to be here today. i thank you. [applause] >> thank you. >> welcome today what promises to be a timely and important discussion and we just heard from representative john sensenbrenner about the programs and the section 215 and section 702 and this is in terms of the media and we now have section 402 and there is a full collection pull collection of e-mail metadata under the usa patriot act and we have seen telephone calls and international communications as
well. we have seen a corresponding movement of activity and there is a lot in congress on a lot going on as well. and we have hundreds of pages of information from the director of national intelligence, some of that was in response to a lawsuit in california and some of it was not. and included in this last name is analyzing thought deeply for two important opinions. it includes regarding the e-mail of the metadata collection under section 402. there is also the release of the 2011 version of the u.s. 2006
briefing of the metadata program and so on. there's a lot in there that is happening. and this includes senator leahy and congressman sensenbrenner and there are actually two dozen bills before congress that are pending with regard to the foreign intelligence surveillance act and at the same time in the court, there are now 16 lawsuits that are working their way through the courts and the supreme court denied this and the same day the government put this in the district that we could not review the actions of the foreign intelligence court. the aclu will be arguing about it and also they are the first on the behalf of center for constitutional rights.
and there is no better one than you could assemble today and i'm looking forward to the discussion and i would like to briefly introduced our panelists to you. i will begin with the deputy legal director of the center for democracy, which houses its national security project and the speech privacy and technology project. it we have testified numerous times on issues relating to surveillance and since 2040 has been a monitor of them commission. he has co-authored the book, which has been part of the columbia university press in the for joining us, he clerked for the u.s. court of appeals for the second circuit as well as the honorable beverley mclaughlin of canada.
he's a graduate of williams college academic university and harvard law school. welcome to you. >> thank you. >> in an age of a divided congress, it is no small feat in our next panelist confirmed by unanimous consent of the senate to serve as the second general counsel and director of national intelligence in june of 2009. i just want to take a moment to contemplate. this is wonderful. okay, she was a partner at arnold and porter and served as the american bar association and the criminal justice section as well as the derisory committee for those on national security and the law. as we have experienced in criminal law and national security. this includes the deputy assistant attorney general as
well. and this includes covert action reviews and other national security matters and he started his career as a quick the judge in the district of new york and of the u.s. supreme court and from 1978 through 1984, he was part of the southern district of new york and he holds a ba from harvard and yale university it's the pleasure to welcome you back to georgetown. matthew wilson has served in the counterterrorism center and we have two core missions, some of you may be aware of this and some may not. the first is to serve with all terrorism intelligence and in this role, mr. olson reports to the national director of intelligence in the second mission is to collect tj
information and operational planning for counterterrorism activities, including in integrating all elements of the u.s. national power and in this capacity, we report to the president of the united states of america. prior to joining us, he served as a general counsel for the national security agency and he previously served as the department of justice as an associate deputy and was responsible for coordinating national security and criminal matters. he also was the acting attorney general for the doj national security division during the presidential transition and we acknowledge not just from the perspective of a general counsel, but also having been somebody who had to argue cases before the court and hit intimately familiar with how it works in practice. in 2006, and from 2005 to 2006,
he was in charge of the national security section here in washington dc. this includes the federal bureau of investigation. and this includes the university of virginia and it is a pleasure to welcome you back to georgetown and has also been an adjunct professor at georgetown, which he had to give up going to the administration and it's lovely to have you come back. finally, i turn to the executive director of the privacy information center in washington dc and mark teaches privacy lock your at georgetown law is an professor and also a graduate of georgetown law. and yes testified including access to information and consumer policy and communications privacy is one of the most prominent advocates in
the united states and overseas. on matters that involve technology and privacy and he served on several national and international panels, including the expert panels on photography policy and computer security and the legal experts on cyberspace law and so he brings to the panel and important perspective as well as knowledge of both domestic and international law and policy. currently chairing the committee on privacy and information protection and he is the former chair which manages the.org domain. and he is the editor of privacy and human rights and the coeditor of the privacy sourcebook as well as information privacy laws. he is a graduate of harvard college and stanford law school and he served as counsel on the senate judiciary committee after
graduation from law school. it and he is a fellow of the american bar foundation and includes the world technology situation and we welcome you. and so actually i would like to begin this panel discussion with you. we will be talking through a series of areas. the first one is the technology involved as to why we are at this point in terms of the discussion and then addressing this proposal in the cases before the court and finally visible to guide the conversations in the future. turning to you, mark, this problem includes governance and national security technology and privacy in foreign affairs and how has this bad for him to.
>> this includes the identification to try to recapture some control over personal data and in many cases to actually remove data. and so i would say that the movement from analog to digital is second in our particular realm. i know that those who are engaged in gathering foreign intelligence to protect the nation's security, they would
say that many communications have moved from the areas where they have been captured in the past to the networks. and so for those people who are engaged in this intelligence, they have a focus of interest that is increasingly modern communication in the networks. an increasingly the isp and telephone communication providers, those companies have in their possession something that they would like to obtain. >> turning to you to talk about how the technology has played into the threat and the general environment where the united states is located at a global center. >> i thank you for the opportunity to be here, especially with such a great panel and following up on these
technologies, we follow the issues and understand it deeply that the challenge from my perspective is to understand the threat that we face primarily from al qaeda and other groups as well. and this is something that we see al qaeda and affiliated group followers and wide geographic areas communicate with each other in this includes communicating with someone in pakistan, yemen, someone in libya, or someone else. so the effect of that is that this has shrunk the network for our adversaries in this includes
operational indications and as well it is a basis for a platform of this propaganda. and al qaeda can reach far into the united states and so we have, for example, the allegations that one of the boston bombers was a passive consumer of this ideology of this propaganda. and it was that that we have read and have incorporated into this. so it is obviously, the technology is a concern and that is why we are looking for ways to and proven abilities to counter that. >> so how does this -- how does it look at these accumulated threats in light of that technologies?
>> well, i'm not exactly sure what you're asking. so answering the question that i want to answer. which is to make two important points, i think that mark laid this out very well. we have made the point that when we were conducting the intelligence, we were talking about relatively isolated networks that we wanted to collect this, we knew where to look and we knew that we were going to get any communications outside of americans. and that changed as it was articulated. so the job is to be able to identify this to us and that is a technical challenge. two other points i want to make
is that we have spent a lot of time talking about terrorism is important to remember that that is not the only purpose we have for foreign intelligence and one of the major challenges that we have is protecting us from cyberattacks and a foreign intelligence capabilities are so important in that area for stopping the proliferation of weapons of mass destruction. so it's not only a terrorism issue, there are other legitimate purposes for which we collect foreign intelligence using the same techniques. and there is no question that a great deal of this is possible. and i think that nobody should believe that we are not sensitive to the privacy implications of what is being done here and that is why with the metadata collection program
you can just allow people to rome for a randomly, there are stringent controls over what became do with it and how we can do that. and this includes what mark identified for collecting important foreign intelligence about the same time limiting fat and overseeing it in ways that provide appropriate protections for privacy. >> okay, there are about a dozen bills that are comprehensive fisa bills. ten of those would end data collection and two of them would not in all of them have some sort of additional safeguards that would be put into place and could you please comment on these additional safeguards that have been proposed and i would be happy to talk about the suggestions i would love to hear your thoughts on whether or not
the use bills would actually help before congress. [inaudible] >> go ahead. >> okay, so we have done a lot of time looking at the operation of these programs and i think that there are some changes that could be made that we think could provide additional protections without unduly compromising the efficacy of the program. and i don't think there is an official administration preventing it, but i think that the bill that would disparage is one that we actually think she's fat. by codifying into law, a number
of provisions that has been put into the court orders and with respect to the metadata, posing greater limits on the extent to which we can make the queries and the amount of time in which we can withhold the information and i do think that we do not want to see the metadata collection go away and i think it manages to accomplish a purpose with a minimal intrusion on the privacy, given the way that this program operates, which is to say we can personally identify the information and this is strictly limited. >> okay, so it would allow collection of content of that information. >> yes he might impose other restrictions as well. it can only be used for contact
and it could not be used for overall kind of -- the kind of things that people worry about. and it is sort of a rome through and extracting people, you can it can only be used for one narrow purpose. unless separate the provisions of the bill until what is your position on senator leahy's bill, and where you stand on that? >> i want to answer my own question and so i would just like to push back on a couple of things that involves and so i think that bob says that during the cold war when know where to look for the implications, which we don't know where to look for
prospective terrorists. if you think back on the history of the cold war, it is always a we didn't know where to look for. is that it stems from a part of many members of congress that there are russian agents hiding under every rock and the fear was that there were agents of we can find and we didn't know where they were and we didn't know how they were in the question we had the have to answer was what we going to do about that and how much privacy are we willing to give up because of there are russian agents hiding somewhere and so i don't think that's that. but there has been a shift in the way that this has been treated. something that matt says. the terrorists use, use the e-mails on the web and obviously that is true. and they also use snail mail and
we still had to ask this question, how much privacy are we willing to give up and willing to allow every letter and then to track every correspondent we engage in, even if they are not reading every letter. so the need to strike a balance is not something new. it's not something that is presented due to the threat of terrorism. and then were guarding control. room for disagreement about how stringent this is that we sat on the government's collection in one of the most remarkable things is if you go to the opinions that the obama administration has talked about, you go to the opinions evaluating the government's
compliance or not with the stringent requirement that was set by the court what you see is of use over and over again. people get a hold of this and they use it for the wrong purposes and may want to keep using it and that happens over again. and that is because it's not particularly malevolent, but you have to go into these debates, understanding the reality that these programs will be misused and implemented in their own ways and they will be abused for people who actually mean to abuse them and they will be accessed by people who shouldn't have access to them and that is just reality and it happens every time with intelligence programs. especially complicated and
large-scale intelligence programs and you have to take that into account and then to answer your question about the legislation. >> we reject them if you want to respond? >> sure. >> this is my lawyer and i have a very good lawyer to help me deal with those issues and i think that is a fair amount of common ground is wilson my past job in the common ground is that these are complicated and they are extremely complicated and inevitably implementing these programs or you have a very dynamic environment where technology and the internet is constantly changing and you have a legal regime we are always trying to keep up with the change in technology behind the eight ball when it comes to fisa and the laws as it tries to keep up with it. but there will be compliance
issues. and this includes misconduct. because i think that the record shows that it is now clear. we don't have this of the intentional misconduct by any means. as we reported to a very energetic court and we dealt with the way that compliance programs are dealt with today, whether it is in the intelligence community or otherwise and we have a court order overseeing government. so i think that the record is one that should give us a degree
of confidence in the way we go about these programs. >> i think that this -- the thing that people read newspapers should understand. many of the times they don't work as they expect them to and i think that using the word abuse in the context was a little bit like saying that the department of health and services is abusing people because of the fact that the obamacare website doesn't work properly and they are complicated and they frequently had eight disconnect between the lawyers and the operators and there is there has been a much
greater transparency about the activities of the fisa court and the opinions and orders and i think that we are grateful for that and i am not sure that that would have been declared without certain publication of authority and how evidence has come about. and that is perhaps an overdue debate about the scope of government surveillance. and i do want to propose another way to understand the oversight. this is not an abuse, how do we measure and abuse, and i have always been fascinated by the original wiretap act and it follows two significant opinions, one that you are
familiar with and the other you might not be. we'll talk about this in establishing the expectation of privacy. and the court also decided this and that was the case in which new york state actually wrestled with this question of how to regulate these surveillance authorities. in this includes affidavits and so forth and they actually says you haven't gone far enough and this amendment requires more of you in authorizing this technique to ensure the privacy is protected. what followed the next year is really a remarkable articulation of the type of safeguard you could put into place to establish accountability and it's not just about the scope of the legal standard, we get caught up in this debate.
so congress came up with this that would permit the use of electronic surveillance in the united states at the time. and that increased dramatically and it started with a very small category and they said that they were going to have public reporting and we were going to find out how this authority was used and whether it was effective, and who gave extensions and this includes being noticed a target after investigations concluded. obviously once it has been completed, you really should let people know they have been subject to surveillance by the government. and you look look at the 1968 act and you say to yourself, this is an elaborate structure of oversight and protection and
whether it is to create what is and then founded investigative technique. i think we're at the point today on the spectrum from the fact that you can imagine with the current authorities, we are just about at the point of unbounded technique and this is certainly true, you know, we have talked about the cases and the breathing in the argument by the solicitor general and i have no argument with bob about being extraordinary with internal oversight mechanisms that have been established at the agency or that he is accountable to the congressional oversight committees. but so much of this is secretive and unaccountable one that is up to a lot of people.
>> my argument isn't so much that these authorities have been intentionally abused up until now. my argument is that you have to take into account not just the possibility, but that they will be intentionally abused at some point in the future and that they have stringent controls may do what they can to make sure that those are actually complied with. and edward snowden is somebody who is not supposed to have access to all information who is
the most sensitive information in the ad is a person i was able to get information and knowledge we have different views on whether that was a good thing or not but that line is that this is something the government wanted to protect to try to protect and it wasn't able to protect it and all of this information was collecting now on that information is protected. ..