tv Washington This Week CSPAN July 14, 2013 10:30am-2:01pm EDT
terror against efforts from congress. of president obama's second term will be defending the first term priority of health care. immigration he would love to get it done but there is a lot on his plate with just defending care.h i don't know how far he will go. you mentioned president bush. we could well be looking at is the situation in worth remembering. passed a e senate brought bill. the house passed and enforcement and they didn't bother to go to conference because they were so different. >> gentlemen, thank you both for us on c-span. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] c-span the kweurpblation hearing for james
the nominee to be the next f.b.i. director. then the privacy and civil liberties oversight board >> i wanted a representative look at american life, so i eeded politics, business, entertainment, food, finance, art. i also was interested in this recurring pattern which you see and oprah and with jay-z and sam walton. begin very eally humble places and are not unlike characters, but who reinvent themselves as something new and find a new idea that is new riveting to americans. hrough that they build an empire. and they can't stop building it.
almost like imperative like with a corporation you have to keep growing. as a person or brand you have to going but then the language becomes a parody and they no to be producing something good. they are just continuing to produce. gingrich writes book after book. oprah is on the cover of every issue of her magazine. so, they become the celebrities hat we are familiar with who are dominating our imaginations and in a way have come to the institutions that have faltered in this period of time. intertwines the struggles of three americans whose american way of life has tonight at 8:00 on "q&a." senators have been invited to a meeting monday at 6:00 p.m. in chamber.senate they will discuss changes to
senate rules for filibusters. same issue came up in 2005 when republicans were in the majority. mcconnell of kentucky spoke on the issue supporting changes. senate's 1970t the cloture rule didn't pertain it a nominations. nor did any senators during the debate on the adoption of the 1917 cloture rule discuss its ossible application to nominations. this was not because senators anted to preserve the right to filibuster nominees. rather, senators didn't discuss nominations rule to because the notion of was ustering nominations alien to them. it never occurred to anybody done.hat would be >> in 2008 senate majority reid argued against the nuclear option. here is a look. [video clip] >> you talked about the nuclear
bookn in chapter 7 of your describing the circumstances with the nuclear option. our viewers can better understand what was the nuclear likelihood is there that we will have to face nuclear option like questions again? >> well, the republicans came up to change our country forever. hey made a decision if they didn't get every judge they to make ey were going the senate like the house of a resentatives we would have simple majority determining whatever happened. in the house of representatives pelosi is the leader. before that was has termite. -- hastert.y wanted the senate was set up to be different. that was the genius and vision of our founding fathers, that h bicameral legislation will two different duties. ne was as franklin said, to
pour the coffee am the saucer and let it cool off. that is why you have the ability to filibuster and to terminate filibuster. to get rid of that. what is what the option was about. thats there any likelihood we will face circumstances like that again? >> as long as i'm the leader, is no.wer i think we should just forget that. chapter in the history of the senate. i hope we never, ever get to really do because i believe it will ruin our country. i said during that debate that my years in government that was the most important thing i ever worked on. >> before the senate returns for majority onday senate leader harry reid will talk about proposed changes to center er rules at the for american progress. watch live coverage 10:30 a.m. c-span. on
now the confirmation hearing for f.b.i. director james comey. he would replace robert muller 2001.as served since from the senate judiciary committee. this is two hours and 40 minutes. >> before we start i understand who watches and i don't want anyone in the audience to be blocked. if anybody stands up and blocks view that person will be removed. hether they are demonstrating for or against any position i might take or for or against any senator grassley or any other senator might take or for r against a position mr. comey might take that person will be
removed. i don't think so it will be necessary. 'm sure everybody will want decorum but i thought just so understand what the ground rules are. i want the american public to heard. khapchance to be today, as we know, we will the until nation of james comey jr. to be the federal irector of the bureau of investigation. the current director, robert mueller mueller, started just a week efore the terrorist attacks of september 11. our world has changed
time.ically in that we have often debated how best enisssure our national securit while protecting the privacy as a great define us nation. this confirmation hearing provides us another opportunity existing policy and to correct our course. few positions have as much impact on liberty and national ecurity as the director of the f.b.i. as the body that considers the nominee, the senate has an important role in this debate, of that course, begins hear in there committee. his come mr. comey and family here today. they will be introduced in a moment. outstanding career in law enforcement serving as u.s.y attorney general and attorney for the southern
istrict of new york under president george w. bush and worked in the private sector with lockheed martin, associates and mcguire woods. he appeared before there 2007.tee in he described the dramatic confrontation e with senior white house officials who were trying to get ashcroft, who was from serious l surgery, to reauthorize an n.s.a. surveillance program. program that the justice department concluded was illegal. he slowed courage and ndependence by standing firm against the attempt to circumvent the rule of law. i would want him to continue to demonstrate the same character he is confirmed as director. since the terrorist attacks of eptember 11 the f.b.i. has dramatically increased security and counterterrorism efforts.
ut that is a transition that has not been without problems. from national security alerlett patriot act surveillance authority my concern is we have the right balance between the intelligence gathering needs of the f.b.i. americans. rights of the f.b.i. has said the tool is us safe from eep terrorism. but i hope that we can agree that those should not come at expense of our constitutional rights. that constitutional rights make us unique and great as a nation. americans have become aware of the expansive corporate surveillance granted to the f.b.i. by the patriot act and other laws. administration officials defend the programs by saying they are critical to the ifying and connecting so-called dots.
there is always going to be more analyzed and connected to industry to connect. is collecting data on millions of innocent basis, when a daily enough?enough just because we have the ability data lect huge amounts of doesn't mean we should. i introduced the fisa protection ty and act to be sure there are limits protections rivacy and oversight. ut as the head of our premier law enforcement agency the f.b.i. director bears a special esponsibility for ensuring domestic government surveillance infringe upon our freedoms. i have long said to expect security and protect americans' fundamental be ts are not and shouldn't exclusively .
to both and i want to hear his testimony how we both.e i have a concern about the justice department's treatment of journalists. of vermont printers and publishe publishers, the first amendment blood.y the burden falls on the federal government to assure that speech of the press is being protected. i'm very concerned about llegations regarding the broad collection of associated press phone records. confirmed mr. comey will be tasked with balancing government law enforcement amendment ith first rights. i'm concerned as others have been here that during comey's tenure as deputy memo ey general he had a this authorized waterboarding recognized hat are as torture. conducted oversight on this issue for years and i believe they led to the
detainees.of it was contrary to our laws and values and made us less safe. is critical that whoever takes over as director of the sense of a keen history. understand that we must never repeat these mistakes because leave a permanent stain on this great nation. in the arn nothing else years following the september 11 attacks, we learned that it nation at leads our all levels of government. we need strong ethical leaders steadfastly adhere to the rule of law. to face director has the challenge had you to sustain the f.b.i.'s increased focus on counterterrorism while uphold being their commitment to the historical law enforcement functions. we want to hear what you regard the priorities for the next decade. a 10-year term. mueller noted -- i
applauded him for this -- he the 100th anniversary of the f.b.i. the rule of law, liberties and civil rights f.b.i. burdens for the they are with made the f.b.i. better for more than a century. we look forward to seeing how comey, if confirmed, would lead the f.b.i. during these times.ges >> thank you, mr. chairman. comey, for mr. wanting to re-enter public as director of the federal bureau of investigation. t is charged with running a vast agency with tremendous powers. this power, if used inappropriately, could threaten civil liberties of every american. appropriatelyused and subject to rigorous congress, it the protects the nation from terrorists, spies and hardened criminals. the attorney general is commonly
referred to as the top law officer in the country. the f.b.i. director serves as attorney general -- serves the attorney general and american people as the top cop street. it is a demanding job this requires a keen understanding of the law, sound management under significant pressure, and a level head. director mueller learned this soon after arriving when the nited states was attacked by terrorists on september 11, 2001. terrible t of those attacks, his mission as f.b.u. instantly anged very and significantly. law ad of managing a enforcement agency he was immediately thrust into the role storied law g a enforcement agency into a national security agency. the sort of change that happens overnight.
ortunately, he rose to the challenge and changed the face of the f.b.i. for this new age threat. the threats our country facing multi-facetted. terrorism is an unfortunate face. the f.b.i. must in addition to serving as a law enforcement agency and lead agency.ntelligence the next director of the f.b.i. continue thered to transition. he must also be prepared to the e the f.b.i. through next challenge. espite the successes director mueller had in transformiing the national deal with security threats, challenges remain for the next f.b.i. director. legacy problems such as developing a working case management computer system, a working effectively managing washington, ns to
d.c. headquarters. linguist he is -- linguists. dealing with infrastructure such f.b.i. headquarters building. aboutment concerns remain the proper personnel balance analysts, the and perceived double standard between line agents and the issuesas well as dealing with whistle blower retaliation. addressed rs must be as they threaten to undermine the hard work of all of the employees at the f.b.i. the position of f.b.i. director is a que in that it 10-year appointment subject to the advice and consent of the senate. 10 jury temple was extended -year term was extended two years ago to allow the director o serve an additional time frame as the president failed to nominate a replacement. t the time we held a special hearing to discuss the importance of the term limit for the f.b.i. director.
one of the reasons congress reated a 10-year term was to ensure accountability of the f.b.i. this confirmation hearing is accountability. we have a responsibility to ensure that the director will be the duties of f.b.i. director against the civil liberties of americans. before us today is the president's choice, the next director, you, mr. james comey. he has a distinguished past. he served as senate confirmed u.s. attorney doctor the southern district new york and general during the bush administration. i would also like to add he has because he married an iowan. mr. comey handled difficult that provide a solid basis for the types of matters
that may come up as f.b.i. director. i had the opportunity to sit down with mr. comey yesterday. we talked about his government and how it prepares him for the job. today i want to discuss with him nontkpwofrpltal employment -- nongovernmental employment martin, hedgeheed fund bridgewater partners and osition of board of directors at hsbc. having the balance of public and experience is very good but i have openly been concerned about the administration's failure to prosecute those involved in the financial crisis including hsbc.al wrongdoing at i want to know whether mr. comey can look beyond his affiliations the private sector and prosecute such wrongdoing. comeyt to discuss with mr. a number of policy matters impacting the director. i continue to have serious concerns with the f.b.i.'s treatment of whistle blowers. comey and i discussed the important role whistle blowers
transparency ng and account bt to bureaucracies. unfortunately the f.b.i. in my a poor history of retaliating against whistle blowers who have come forward wrongdoing. this is particularly concerning in light of the recent leaks of while not information necessarily an f.b.i. matter the recent leaks have highlighted an focused on for years. whistle blower protection for employees.curity including many assigned at the protective a mechanism to report wrongdoing without fear of retaliation. number e a significant of national security leaks wouldn't have occurred if they had a path forward. unfortunately, a provision of whistle blower protection act expanded protect to national security employees but was cut by the house of prior to being signed into law. i believe this is a necessary legislation. i would like to hear mr. comey's
houghts on whistle blowers, their value and how they will handle their complaints. assurance that they will not face retaliation and the pursuing handling appeals against whistle blowers was found etaliation by the inspector general will not come to an -- will now come an end. seconds, i want to ask -- second i want to ask about recent developments about the f.b.i. using drones in the u.s. mueller that the f.b.i. was using drones here for surveillance surveillance. while he indicated that this was that imited he also said policies regarding limitations on drone use were still being developed. is concerning as policies are a little used if developed after the f.b.i. deploys drones here. f.b.i. use of drones calls into question the thoroughness of a written
response i received from the general holder indicating use of drones by t.f. but only mentioning f.b.i. in passing. to hear what he thinks the proper use of domestic whether he d be and would delay use until regulations and policy are deploy them ow to for domestic use. i would also discuss his views security and f.b.i. role. we are all painfully aware of limitations doctor -- we of the limitations on 9/11. agents prior to congress and the executive branch have been successful in ringing down the walls between the intelligence and law enforcement but concerns expressed in recent years to rebuild those walls. for example, advocates have sharing of rmation cyber security thretd
information which could rroneously reconstitute a separation similar to a wall. i would like to hear mr. comey's security ational matters such as cyber security, counterintelligence and counterterrorism. i also discussed the nuts and matters with ment nominees specifically i want to hear his assurances that he will cooperatively with congress and provide forthcoming inquiries.to congress has a constitutional duty to conduct oversight and iven the wide discretion of f.b.i. has to conduct investigations congress needs to channel to obtain information relative to our o r oversight requests. i want to discuss some general management issues such as the disciplinary system which long been criticized for having a double standard for --agement as opposed to lane line agent. needs to be managed before other problems are brought out.
here is a lot of ground to cover and i will probably have some questions for answers in writing. > i will note that senator blumenthal is the senior senator mr. comey e in which resid resides, or as we call in of those southern states. did you wish to introduce mr. comey? i do. i appreciate the honor of introducing mr. comey to the supporting him strongly for this new role in an extraordina extraordinarily distinguished career of public service. welcome him and his family, his wife patrice and i of your children are with you today. i will let you introduce them. saying ok forward to hello to them later when we are
done. admire o say how much i mr. comey's record of public service. epitomizes what is best about american public service. he tor grassley mentioned was reentering public service but in a sense he has never left it. private life, his life of working in the private has also contributed immensely to his community and of is state, the state connecticut and community of westport, where he and his waive have devoted y themselves and his family to the needs and interests of both their community and the and many individuals who live there. no stranger to our and criminal justice system. his life has been about public using the about department of justice as an agent and means to achieve
in our society. he began his career at the in one of of justice the most difficult and important there is as an assistant united states attorney in the york.ern district of new he quickly rose to become the criminal ef of the division as a former united tates attorney myself i tphknow how important that responsibility is in a practical ands on sense of making extraordinarily difficult decisions about balancing and the need hts to prosecute and achieve greater safety for the community. he took on another difficult job managing assistant united the eastern ey for district of virginia and he was ecognized by his superiors there as an unusually skilled prosecutor who could be counted
and get the ults job done. he has had personal prosecuting y for one of the most heinous terrorist attacks in the history he united states in saudi rabia and he quickly delivered 14 indictments. he was promoted at that time to be united states attorney for southern district of new ork, one of the major prosecutorial areas outside of washington. showed the same fearlessness and tirelessness and relentlessness in his dedication to justice there, which have a ome his trademark as professional prosecutor. pursued corporate crime in some of america's biggest business businesses, and he was recognized for his performance with the director's award for superior performance and
seven -- stenson medal. he has been recognized not only in the public sector but by the bar.ate mr. comey's success led to his to be deputy attorney general for the united states, econd highest ranking official at the department of justice. a lot has been written and said that role.enure in i had the privilege of working respectsin a number of as attorney general for connecticut during that period of time. but i came to admire his xtraordinary currently and standing up and speaking out to his superiors and willingness to speak truth to power and defend the most fundamental liberties that our tees constitution provides. members of this committee think about mr. comey's views, they can
on his complete and utter integrity, his devotion to the of law, his dedication to pursuit of n the justice and civil liberties, demonstrated just not in words but in action throughout his in westport connecticut, i admire the work that his wife and he have done. he and his wife are licensed foster parents in connecticut. they've donated their time and energy to create a foundation to support children to take them out of foster care. his life has been about public
service. i'm honored that he has chosen to assume this demanding and challenging role. i want to thank him and his family for the service and sacrifices that they have made. thank you mr. comey for joining us today. >> thank you, mr. chairman. >> to have it on the record for the comey archives, can you introduce everyone in your family? >> i forgot that. behind me, on my left, my wife, patrice. my five children are seated in the same seats they were sitting in 10 years ago. a little bit older. the only one who has not aged a bit is my wife.
ryan is 19. claire is 16. and, those are my troops. >> do you solemnly swear that the testimony you will give will be the whole truth? >> thank you. members of the committee, it is an honor to be before you. the last time i sat at his table was two years ago. i am back asking you to confirm me. it is an amazing honor. my first major case was in 1987.
i was assigned an interstate theft case. there was a report that a baby prosecutor was assigned to this case. rudy giuliani asked her to hold off because he thought that this prosecutor could be trained. and, he was trained. by dozens of agents that i was so lucky to work with. i came to know the fbi agents well. i used to say that the division of responsibility was clear. they would do hard work and the attorneys would get the credit. fbi agents do hard and dangerous
things. their work is only recognized when something goes wrong. i came to know that there are people from all walks of life that are united by a desire to do something good for the country. i came to know that they embodied that you make a living by what you get in a life by what you give. they made remarkable lives without getting much in return. those people excited me the most. i know that if i'm confirmed, i will follow a great american. the metastasizing threat of terrorism that poses a threat to our secrets and commerce.
i know that the members described this in fundamental ways. this is a hard job. i will make mistakes. i will follow mr. mueller's example and learn from those mistakes. his legacy of candor and integrity is one that i pledged to continue. i also know that the fbi must be an independent entity in america. it cannot be associated with any party or interest. it has to be seen as the good guys in this country. the fbi must be about finding the facts in a fair and objective way. these values are the things that
i love about the fbi. i just introduced my beloved wife and my five kids. she is the reason i am sitting here today. i'm going to embarrass her by telling a story. when i first got offered this job, i was inclined to say, no. she urged me to say yes. she said that for two reasons. she said, this is who you are and this is what you love. second, they won't pick you. so, you might as well go
through. here we are. i will remind her of that. i've been gone from government for eight years. i missed it every day of those eight years. the mission of the department of justice. i hope to be able to rejoin that mission. >> i would like to talk about private conversations, but, the few weeks before your name was disclosed, the president called and asked my advice regarding you as nominee. i said, how will you talk him into this?
anyway, to be serious, i want to go back to something earlier. waterboard has been recognized as torture since the spanish inquisition. soldiers used this technique in the last century when they were torturing japanese soldiers. after 9/11, harsh interrogation techniques, including waterboarding, were used. director mueller did not allow the fbi to dissipate in those interrogations.
that was true leadership on his behalf. what would you have done, had you been the director. >> when i first learned about waterboarding, my reaction as a citizen and leader was, this is torture. i wanted to make sure that i had nothing to do with that business. if i was the director, i would never have anything to do with that. >> your approval was in may of 2005. that concluded that the use of waterboarding would not violate the torture statute. >> as i said, when i was read
into the interrogation program, my reaction was what i described. as the attorney general, i tried to force a discussion about whether or not this is the type of thing we should do as americans. there are were legal issues. i thought that the most important thing was should we be doing this. i fought legal fights, which i will talk about, but i thought that this is wrong and awful. you have to go to the white house and make them stare at that question. i think we should not be involved in this. i made that argument as
forcefully as i could. the attorney general took my notes with him. he said that the principles were on board with the policy, so, my idea was rejected. as a father and leader, i thought that was torture. i discovered it was a harder question to interpret 1994 statute that i found vague. that resulted in an opinion, at the end of 2004, that i thought was more responsibly written.
in the spring of 2005, after i had announced my resignation, the combination opinion was the most important. no interrogation was done with one technique. there are always used a group. i read the first opinion about the individual techniques and i thought that that was a serious interpretation of a vague statue. i read the second one and thought it was terrible. i thought as a responsible. that is why i objected to it. i contacted the the attorney general and made my case. he disagreed with me and overruled me. senator, i'm not sure that i didn't write. -- did it right. >> i'll ask you the same question that i asked the attorney general michael mukasey, do you agree that
waterboarding is torture and is illegal? >> yes. >> will you answer this question the same way no matter what? >> absolutely. >> surveillance powers of the fbi have grown. americans are concerned about the domestic power of spying agencies and the patriot act. they can get the data of law- abiding americans. that creates concerns among people in my state. given that the collection metadata is appropriate, when a majority of the individuals are
law-abiding americans? >> i'm not familiar with the details of the current programs because i have not been cleared and i've been out of government. as a general matter, the collection and analysis of metadata is invaluable tool in counterterrorism. >> in that sense, we're going to be reviewing some of the aspects of this. if you are confirmed will you work with me to come up with common sense improvements to our surveillance laws? >> i would be happy to work with you. >> i worry that, again, as i said earlier, that because we
can do it, i'm not sure that we should. that is without going into the parts of it. i'll ask you this. it is a basic question. we make sure that the fbi does not lose sight of its traditional crime-fighting mission. white-collar crime, public corruption, forensics reform, and not just be seduced by the intelligence gathering aspects. >> i will strike that balance. we have to be both. both in intelligence agency and
a crime-fighting agency. >> sometimes, that is the nuts and bolts that are the most important to the average person. >> yes, sir. >> as you and i discussed in my office, oversight is important in our checks and balances government. i expect that you'll be responsive to my constitutional duty of oversight. you'll take it seriously and answer it it in a timely manner. if confirmed, will you assist me in my constitutional oversight activity and be responsive to my request and my colleagues requests in making you accountable to the american
people? >> i agree very much. oversight is a critical part of effective government in a flourishing democracy. >> you will be responsive to my requests for information and will not hold them up due to lengthy clearing processes. >> i do not know what problems you have encountered, but, i pledged to do my all to honor requests. >> on the issue of whistleblowers, i value the information they provide congress. people who cooperate with congressional oversight efforts should be cool operated with and
not retaliated against. we do guarantee me that you will not go after fbi whistleblowers? >> yes. senator, i said to you, i think that whistleblowers are a critical element of a functioning democracy. people need to feel free to raise their concerns. >> i'm not accusing you or others of retaliation, but, whistleblowers are retaliated against in various ways. will you assure us that every whistleblower is treated fairly and those who retaliate against whistleblowers are held accountable? >> retaliation is unacceptable. >> this is more difficult to answer, do you believe that whistleblowers that no matters of national security should be
treated differently? >> that is one that i do not know well enough. i will look into it to understand better. >> i will will go on to another subject. it will be difficult because you are new to knowing that you were going to be appointed. while moving your organization forward, do you have specific goals or priorities for the fbi that you will pursue? >> i can say, with confidence, that i think is important for the next director to continue the transformation of the fbi into an intelligence agency.
i mention this in my opening statement. the cyber threats, cyber crimes, cyber terrorism, will be a key part of the next 10 years. beyond that, it would be irresponsible for me to say more without understanding how things are going now. >> i want to go into your public-sector service. how will interact with your new position, if you are confirmed. the stop work order receipt of the fbi's termination of sentinel was watched and criticized by the inspector general. the program ran past the deadline and cost more than it was planned.
because you were the general counsel at lockheed martin, i ask these questions. what involvement did you have with the sentinel program? >> none. i was aware of it, in lockheed martin, in a general way. out of an abundance of caution, i tried not to be involved in it and was not. >> do you think the fbi and taxpayers got what they paid for in the sentinel program? >> i do not know. i do not know the answer to that. >> you worked at a major defense
company. you became the director of hsbc. will you have a conflict of interest with regards to that matter? how would you resolve the conflict? >> i think it would be a conflict and recuse myself of any involvement involving my former employers. >> generally, with regards to pursuing those matters, how can we be assured that you will go after white-collar offenses? i have long thought that prosecution of white-collar crimes is the right thing to do.
you don't have people who are doing accounting fraud high on crack. but, we must send messages to the good folks of reassurances that we are doing something about this. and, messages to the bad folks that we're going to do something about this. >> bridgewater, your former employer, embraced a philosophy of transparency and recorded a lot of meetings. as a supporter of transparency in government, i think that the fbi could use a little bit more radical transparency. how could this apply to the fbi? >> bridgewater suggested that i
taped all meetings of the fbi. i'm not prepared to do that. i went to bridgewater because of the culture of transparency. it is part of me and incumbent upon every leader to foster an atmosphere we speak truth to power. bridgewater and fbi are two different institutions. i will will carry those values with me. >> thank you. >> thank you. >> thank you. thank you very much. welcome. mr. comey, as you know, in december, the senate intelligence committee adopted a 6000 page report that provides a
comprehensive review of the detention and interrogation program during the bush administration. we're not ready to issue the findings publicly. it is significant, it means that a majority of the committee has declared that enhanced interrogation techniques should not be used. if you are confirmed, i would ask you to review our supports. it is a big deal to review 6000 pages. i think it is important that you have that background. i think is important that you read the case study. i want to focus on the objections that you raised with alberto gonzales, before he attended the white house meeting about cia techniques.
you described telling alberto gonzales that the interrogation techniques were awful. you said that there needed to be a detailed factual discussion. and, that's a could not be that the principles are willfully blind. why did you believe that there why did you believe that there was a danger and that the principles on the national security council were willfully blind to the details of the cia program? >> thank you. i heard no one asking that third question. there are three key questions with any terrorist any terrorist technique. is it effective? is it legal?
should we be doing it? the white house said that only the first two questions matter. as you said, i thought that that was unacceptable. >> thank you. i like to speak about one other thing. i wrote a letter to the secretary of defense on the issue of forced feeding of detainees at guantánamo bay. we took a look at the force- feeding issue. the kidneys are restrained in a chair by body, by foot, by hands, and twice a day to.
a tube is inserted up the nose. it is covered in olive oil. the individual is force-fed. we have 86 detainees who are cleared for transfer and are no threat to the country. they have no place to go. this is an expression of hopelessness. the issue has been before the d.c. district court. this morning, the newspaper said that no courts shall have jurisdiction to hear or consider any action against united states or its agents relating to any aspect of the detention, transfer, or treatments of an alien who is or was detained by
the united states. we have a law that takes the courts out of any adjudication on this issue. i am very curious. you have a look at the manner that they are administered and concluded that they are torture. these are people who are no threat to this country and have been cleared for release. they're being forced fed to keep them alive. in my view, this is inhumane. i'm curious regarding what you would say about this. i have received no answer from
secretary hegel. the chief of staff saw what i saw. i'm concerned about it. it is the wrong thing to do. >> i do not think it would be an area that is within my job scope, but i know what you're describing. >> it is within all of our job scope to care about how the country acts. >> i agree with that. i also know that there are times where the federal authorities have had to force-feed someone who has had to eat. they try to do it in the least invasive way. what you described, i would not want it done to me.
>> thank you very much. >> thank you. i must say, i agree with what you said. >> thank you, mr. chairman. welcome back to the committee. this is now the third time that you will be unanimously supported by the senate. i hope that that is the case. you are a folk hero for democrats. i don't believe that that is a cause for concern on this side of the aisle. the 9/11 terrorist attacks change our nation forever. we have given the fbi
significant tools to use. the debate continues in congress over whether or not these tools are sufficient or appropriate. the debate is continued in the public arena by damaging leaks from reckless individuals. should we confirm you, will you use the tools from congress? >> yes, senator, you have the commitment. >> the fbi uses these tools to protect the country. the washington post claimed that we are in a time where we lived in one list everything. explain the standards and that the fbi respects the rule of law.
>> people do not understand that the fbi operates under constraints. it starts with the attorney general's detailed guidelines on how to conduct counterterrorism investigations. people do not understand what the fisa court is. they hear seaver courts and rubber stamp. my experience, which is long, people do not realize that it is independent judges. they are anything but a rubber stamp. anyone who's appeared before judges say that calling them a rubber stamp is wrong. the activities are overseen by congress.
and, by highly intelligent inspectors general. that combination of judicial involvement, ig oversight, congressional oversight, for me, results in an effective oversight regime. >> that is good enough for me. you could go on for a long time. you spoke at the humphrey institute of public affairs. walter mondale said that you are an example of lawyers who obey and enforce the law. i would like to extend on that
dual function. >> the oath that public servants take is to uphold the law of the united states. to ensure that they are executed and given life. it is important that you be aggressive and respectful of the boundaries. that is a balance that some people think is impossible to strike but, i do not think so. >> right. >> one of the many things that i respect about robert mueller is his candor.
he has been straightforward. when the inspector general released a report in 2007 about the fbi use of national security letters, director mueller implemented reforms and auditing that the inspector general identified. i hope we see that transparency and accountability and that you will be open about anything that needs to be corrected. >> i agree very much. it is at the core of mr. mueller's being. earning from mistakes is the only way that an institution survives and improves. >> i would like to highlight the
scope and depth of online policy around the world. the theft of our intellectual property undercuts those who share their talents and creations with us. unfortunately, because the changing technology, those charged with enforcing those laws must stay ahead of those who perpetuate these crimes. it is not an easy job. some of the recent investigations talk about this difficult area. if you are confirmed, would you prioritize property enforcement? >> yes, senator. from my eight years in the public sector, this is a public
concern. we are the cradle of innovation. products become jobs that become enormous companies. >> i have a great deal of respect with you and will work with you. i want you to know that for you to be willing to come back into the government is a great service to our country. i want to thank you. i support you. we hope we can make this a quick confirmation. >> senator schumer. >> thank you, and welcome. despite the fact that you have moved to connecticut, we consider you a new yorker. we have known each other a long
time. i'm glad you're here. i want to speak about my experience. everyone should hear that. i'll ask a few questions. the job as director is one of the most important in the nation. it is 10 years. a lifetime risks abuse of power. we learned that from j edgar hoover. we do not want the appointee to be subject to the whims of political appointments. if there is one thing that i'm confident of, it is that you are more than capable of exercising independent judgment and outright courage.
it was six years ago that you sat at the table and talked about the role of politics at the department of justice. your testimony was one of the most courageous acts by a witness that i have ever seen. if the book was written about profiles in courage, this would be a chapter. the department did not look very good. my staff, my chief counsel at the time, had discovered that there was more to the story. you agree to speak to him on this topic. after this conversation, we knew
that you are prepared to testify about something of importance. a constitutional crisis that was not known to american public. your testimony was one of the most brave moments i've ever witnessed in my years as a legislator. you exhibit the wherewithal to talk about the ilk of law enforcement. albert gonzales and andrew card got the approval of john ashcroft for wireless wiretapping while john ashcroft laid ill and his hospital bed. you are the acting attorney general that night. you are not willing to sign off on the scope of the program at the white house wanted the department of justice to authorize. the history is known. you and director mueller made
sure that no approval was given to the program that you did not feel had legal authorization. it appeared that the program was authorized after it had been modified to your satisfaction. will you be able to say, "no," when it matters the most? because, you did that day. >> yes, sir. >> i have faith that you will. news reports have suggested revealing information of the gathering of metadata and phone records of internet. the parameters may have been
authorized by the fisa courts under the foreign intelligence surveillance act in 2006. documents --sified circumstances that might be broader than what most americans have assumed. now, there has always been an age-old struggle between security and liberty. this has never been more stark since 12 years after 9/11. you know what matters most in your many years of law enforcement's before and after these events. my, when you have the classic conflict of liberty and security is first, the debate should be open. second, the resultant policies
have to be governed by rules. third, an independent arbiter must determine whether these rules are being followed. in order to make sure we strike the right balance as society, we need to know more about what defies accords role court role is in approving these programs as they have been reported. asquestions to you are follows. first, would you be willing to support declassifying or releasing declassified summaries of fisa court opinions regarding these programs as the senator proposes to do in a bill that i am a supporter of, obviously with imitations on any security breaches? >> senator, i agree to the transparency is a critical value, especially when weighing trade-offs between security and liberty. they are aware that looking at that very question. because i do not know what is in side,inion or the other
this is hard for me to say at this point. i think it is worthy to look closely at it. >> if it is true that none of , how8 requests were denied can the american people be assured that the pfizer court is exercising real oversight as it was intended to do when it was established in 1978? you told senator hatch it is not a rubber stamp, but if they approve every decision, it is hard to think they are doing the job they were empowered to do. can you give me a thought on that? >> i hear folks say that quite often that the government is undefeated so how can it be a real court? -- i do notcases know where it has been criticized by a federal judge. the reason is we do not want that to happen.
we work like crazy to make sure we have our ducks in a row. if we lose that credibility with the court, we were the we will lose something we can never get back. i know it involves fisa applications. at the government is extremely conservative in putting together what it presents to the court. >> but you would work for greater transparency provided it does not jeopardize security. >> yes. >> thank you. >> thank you mr. chairman. congratulations on this very important nomination. fbi as you have. --emember in your telling us our mirror being trained by some very fine fbi agents as a young prosecutor. i do believe it is the greatest law enforcement agency perhaps in the world in dealing with complex cases of all kinds.
it deserves and must have great leadership. i first considered that denomination should be able to he said iteadership. would be nice if you are able to contribute to the discussion. it sounds like rudy, i suppose. you have the kind of biography you are alook for. assistant united states attorney and virginia for six years. deputy attorney general, sharing the president's corporate tax force and safeguarding america's civil liberties. i guess you are there for three years in addition to being an attorney for some great law firms and corporate entities.
i think you bring the kind of background we need. i was looking at some of your cases. you tried to gambino brothers. 14 saudiinvolving hezbollah people who murdered 19 americans. you did the worldcom case. matter.s a huge fraud a $200 million case. theft cases. martha stewart's insider trading case. i will mention that in one minute. thee represent to me experience of a highly -- assional, very rarely lawyer in united states could rarely be involved in so many
high-profile cases. you bring that background and worked on every one of those cases with the fbi. did you not? >> yes. >> so you know the rules that they operate under very well from an intensive personal experience. i think you have the background for this job. you have proven in the past you are willing to stand up for your convictions. prepared to pursue any cases that come before you involving congress, did ministration, governors, or other powerful forces in the country if you are called upon to investigate them? and will you complete the investigation affectively based on the law and the facts? >> absolutely. >> i think that is your background. i believe you can fulfill that
task. i do. now, i do not know -- we talk about guantanamo and exactly what the senator is referring to their. i would just say that nobody is being tortured at guantánamo. at guantanamo, nobody was this was special cia or other people around the globe. do you not -- don't you are two options with regard to how to handle someone who attacks united states? combatant, an enemy they can be tried by military commission. be tried and detained in a place like guantanamo by the military as a prisoner of war and they may be tried if they violated the rules of war.
as opposed to just being a lawful enemy combatant. of course there is a federal court prosecution that can be personcarried out if a is brought to federal court and they violated civil and criminal laws. is that right? two different approaches you can take? >> i think of them as three effective and appropriate tools. you have mentioned all three. detention. detention and trial and military commission or detention and trial and a civilian court. have beent all three used in president obama's and ministration and president bush 's is a ministration. >> if you in civilian court, you must be brought before a judge. is that correct? >> yes.
rule five requires prompt resentment. you can have an attorney appointed for you if you do not have one or the attorney you may have. >> correct. >> of it as a terrorist, could be associated with a terrorist organization. lex could be. .> and you get miranda warnings they do not have to make any statements. >> that is correct. lex they can be brought before the judge at a preliminary hearing and the government has to lay out evidence revealing to the world that the individual .ho may be an enemy combatant is that right. >> certainly went sort -- when .roceedings are filed
>> evidence can be filed in the preliminary hearing. >> if there is a preliminary hearing. i have never done one. while there were some protections for intelligence methods and capabilities and sources and some of these it does provide the possibility of dealing through the evidence that is presented the sources and methods of identifying and arresting this individual. isn't that correct? >> i suppose it is possible. in my experience, the federal courts are effective at protecting methods even in prosecution cases. >> thank you. true with regard to each of those instances that the trial and military commission
provides better protections for the united states with regard to intelligence revealing and be able to maintain the individual with or without a trial and without public resenting? >> in some ways the military commission has an advantage. i'm not so sure. >> i had a few more questions but i understand. >> we are getting off of the subject, but i know we have had .our or five convictions you are not going to get convictions. that is exactly what is been happening. >> thank you very much mr. chairman. let me start off. i understand your answer about
the force-feeding at guantanamo, particularly in light of the opinion. i would like to clarify for the record that i agree with the conclusion that we're going to join together together and perhaps others wish to join together with a letter to the president to exercise his authority to end of this force- feeding in guantánamo. the president has called for the closing of guantánamo. he also said in a speech a few weeks ago this very issue. the judges calling into question whether he has the arty. we're going to express our feelings that it should come to an end. that will force our hand. . i believe congress has been complicit in the situation. we have not followed the president's lead. we have left it in a limbo which is unfair to many who are involved. the membersou that of the navy and coast guard who are part of it are at their wits
end with what to do with these whom have many of been adjudged no threat to the united states and have been held indefinitely. in this case, the person who raised the issue has been judged ready for release. tohis despair, he has turned this faster he is not eating at all. it is time for us to move the issue. i understand it puts you havedelicate edition to conjecture on where this goes, but we will follow through. let me go through to a couple of issues. we had a long conversation about this torture issue. i thought what you said in a few words was what the attorney general refused to say. that, in fact, waterboarding was torture. here -- id some time won't -- about what was going on in the administration over the debate about waterboarding and
other techniques interrogation. i think another point was about the pfizer courts. you said you did your best dot classifies so there was more information to the public to understand the decision-making and our government. that is consistent with our democracy. ,lthough there is an obligation declassifying provides that information. do you feel the same about the spies a court decisions? that is redacted, we should be -- to themore of the public so they understand more? >> thank you. earlier, i think transparency is a key value when it helps the american people understand what to the government is doing to try to keep them safe. if they understood more, they
would feel better about it it is when folks do not know things when people question if the government is doing the right thing. at the same time, i'm not in a position to judge what is on the other side. operational some advantage. i think it's important to do what they are doing and look closely at it. >> i hope you would encourage more transparency in the pfizer courts. that would be helpful. also, in future gathering of information, minimization is critical. instead of gathering all of the , phone records, one area code to focus on the suspects which i have been arguing for for years. let me go to the point that has
been raised because it comes up time and time again. the minute we apprehend the terrorists, i can guarantee within 24 hours someone will take the floor and say, for goodness sake, don't put them through the article three courts if it is a suspected terrorist they must go to military tribunals. i have always been puzzled by this and i know you have as a prosecutor faced this decision recommendation. where will this person be tried? for the record, i believe that literally hundreds since 9/11 have been accused of some form of terrorism and successfully tried and prosecuted in article three courts. during that same record, i think the track record is six who have militaryecuted at tribunals. let's go to the point raised. they would exercise -- character -- categorized the reading of miranda rights as the end. as soon as you can lawyer up, they shut up.
what is been your experience when it comes to prosecuting terrorism cases using miranda warnings? >> my experience is that we have about a 20-year track record in handling al qaeda cases in federal courts and that the federal courts and prosecutors are effective at accomplishing the tito real and every one of these situations. a i said, i believe there are number of other tools that are available, but i know the track record of the criminal justice system. it is highly effective. >> we discussed the role of attorneys and families in the article three process. in interrogation and preparation for trial, can you tell us what your experience has been? >> sure. one of the things i like that i suppose some folks might not like is that the entire thing is designed to get information. we have very strong sentences in the federal system. the only way to have any chance to get out from under them is to
provide information. in my experience, families and lawyers is often a useful lever for me to get information because then i have a loved one whispering in the air -- in the ear of the person i have detained saying, you need to do the right thing here. it is the only way you get to see the kids again. that assist me in getting information. >> what about this point about taking this in an article three it could jeopardize the lives of friends, allies of the united states, even of the military. what protection is there? >> my experience is they are good at protecting classified information under which a court scrubs information to try to reduce the risk of disclosure. i think the track record is
pretty good. there always remains a risk. by and large it is affected. >> thank you very much. i appreciate your testimony. >> thank you. thank you for joining us. i remember distinctly meeting you in utah. you visited our office. i remember some of the council you gave us that day. he told us specifically that we ought to stay close to our families. you see things that sometimes no person ought to see. i cannot help but be reminded of you might see things that are unpleasant. i wanted to talk to you a little bit about the privacy interests
protected by the comp the the government maintains that it has the at doherty for the nsa to collect large amounts of metadata to store that on a database basically with respect to telephone and e-mail communications of pretty much every american. it has the authority to hold it over a long time and when necessary perform searches to perform out connections based on andonal security concern identify leads they might follow up on. , they arestand it governed largely by internal nsa rules. no external constraint or
anything of pro-gf. those who defend this practice insist that understood pre-and that thecedent government has the right to do this. no real problem with that. this was a case decided by a 5-4 margin act in 1979. i think there might be different forth and man -- fourth whereent areas at play every american is the target of the kind of data collection of .hat we are talking about today
>> we spoke a bit about this privately. i have not thought about it much then. i read a paper written by a second year harvard law student about this. it is an interesting question as to whether the fourth amendment as technologyies we ought tohether think about it differently, where each of those pieces of metadata is allowing the government to put together a mosaic about you that goes beyond what you would normally expect. fascinating question. i do not think it is settled. . >> i appreciate your willingness.
i think as you look at that and youreview as the court did, asked me two questions asked in number one if there was a subjective affirmation of privacy information. and whether that expectation of that societye could and should regard as reasonable. to a differente conclusion with regard to this. i appreciate your willingness. that it wouldede in theerent altogether case of surveillance of e-mails, it would be in eve you -- even easier question with the context of e-mails. >> that is different from
reading the outside of an envelope and opening it and reading your letter. you would not see any substantive distinction between the government opening somebody's mail and the government opening somebody's e- mail to read the content of it. >> i have thought of it as a fourth amendment event. it is interesting. allows in this area government agents simply by sending a request to an e-mail provider to read the contents of someone's e-mail, not just themetadata, to maintain substantive content of the e- mail communication. ,nce it is passed 180 days that seems to me to be a problem. it is one that we have been working on together. this is a loophole we are trying to close. would you agree with me in concluding that for fourth
amendment purposes there is no discernible constitutionally significant distinction between an e-mail that is 179 days old and want that is 181 days old with the former being entitled to fourth amendment protection. >> i do not think the fourth amendment expires on a date. the 180 day. of i thought it was content that i would need probable cause to get. i think the department is working to see if that cannot be fixed. it was anachronistic even at the time in the sense it was compatible with the fourth amendment. it is easier to understand why it did not raise eyebrows then.
maybe one could have made an argument that been. i certainly do not think the same argument can be made today. i am pleased that you never went down that road. i know i certainly did not. there have been some within the government to have suggested that this is an appropriate option for government agents to pursue. i hope you stand with me in recognizing there is a fourth amendment one at play. thank you very much. work onll continue to the legislation. let me pick up where chairman leahy left off. you are describing the two office of legal counsel torture opinions that adjust the code
session 22 348. there is one that related to certain techniques. then there was a second one related to combine the techniques. you focus on the combined techniques one. you knew that the techniques combined fashion. the memoee that this were to fall under the certain the cia wouldo have been able to go ahead and waterboard as long as that was their technique. in that sense you clearly authorize waterboarding by
approving that memo. >> i think that is right. i do not want to quibble and say i authorized waterboarding. it is a very difficult and close question. this is what i thought. that is why i did not object. i would contend that it was not serious and not reasonable that it left out things that you as a supervisor were not in a position to know about. prosecuting japanese soldiers as war criminals for doing that during world war ii. prosecuting our own soldiers for that. prosecuting an american sheriff for doing it. there was a final summer in the department of justice about a criminal prosecution for water
-- waterboarding and no one bothered it to come up. it was not something you had to go through the files to find out about. they described it probably 10 times as torture. never made it into the opinion. i cannot blame you for that. i do not think that these need the standard. you also said you are concerned that they were very narrow. questionsseveral being answered. that was the reason to let it go. datedwas a third opinion may 10. it is on the same letterhead. it is from the same office.
it was signed by the same lawyer. it is directed to the same recipient. discussing the same topics. it is not specific to 2340. the constitutional requirement had such horrible investigations against torture. what if that opinion? it came out 20 days later. >> i did not see it at the time. i guess i can see why they did not show it to me. i have read it since. i did not know about it. >> that is somewhat remarkable. first he write about the few opinions to reveal the not tos you said were the standards of the department of justice? we had this to undertake the
general opinion. i did not ask him to do the two main opinions. i think that came from elsewhere. of theere made aware opinions presumably between may 10 and two may 30. you have major? >> very much. late main is when i went to the attorney general and said we have to address why we are doing this. >> by the time of the may 30 opinion they wrote another opinion on the same subject to cut you out. >> unless i am completely losing my mind, i doubt that. .> it is about article 16 >> and applying a fifth
amendment standard. >> i did not see that opinion. >> when you said you thought the latter two opinions were more responsibly written in the first two, what effort had put a foundation under that determination? .> both the people involved in thereat confidence serious balance people in the process they went through involving many more bright departments. you do not pressure test them yourself. you saw to it that they were subjected to a much broader array of common and received
pressure testing from multiple agencies and you had considerably more confidence in the principles. >> that is fair. i think i would like to emphasize to you is that it would be very right -- wise and helpful for you to take senator feinstein's advice and spent some time with the intelligence committee report. i was heavily involved with that. if you look at the third one they make assertions. to debunk itr me here. i had a hearing in this .ommittee on the interrogation the fbi participated in this. that mohammeds the dirty bomb plot.
andcia contractors came in started to apply the abusive techniques. at that time the information completely shut down. it was nothing compared to what had been achieved by the fbi agent who is a very gifted interrogator. my apologies. my time is up. compare this to the facts. i think you would see the department was pretty gravely misled. >> sorry to be so tough. >> we have a boat coming. >> you did the right thing. >> congratulations on the nomination.
could do these jobs without the support and love of our families. thank you for your willingness to continue to serve the united states. i wanted to ask you, and i know you will agree with this, one of the great things about the american system is that no beson, whether you president of the united states or an average citizen, no person is above the law. >> that is one of the many great things about this country. -- hard to do and she recounted you did during .he bush administration that is to be a voice of independence. perhaps go against the grain. are you going to be as equally committed to the number of the obama administration as you were a member of the bush administration to be that independent voice where you feel that is the appropriate course of action?
>> i am. thatr all the differences overbeen discussed here enhanced interrogation, my impression is that the counterterrorism policies of the obama administration in large tot bear a lot of similarity the counterterrorism policies of the bush administration. would you agree with that? >> they had this in creating metadata. it is to kill members of al qaeda. there seems to be a lot of continuity with some notable differences. i do have a question about the
enhanced interrogation techniques you talked about earlier. you said there were three questions. one is was it effective? was it legal? that is a question for the office of legal counsel. then there was the prudential question about should we be doing this stuff. i think you made clear on the third issue you thought we should not. does that apply to all of the interrogation techniques that were used to interrogate members about qaeda and others? ?r just waterboarding >> i was concerned with waterboarding and sleep deprivation in particular. ones i focused on the most. >> you think sleep deprivation as torture?
>> i was concerned that thiscularly in aggregation plus the other things was very problematic underneath a statue. consequences to shatter the enhanced interrogation. by virtue of their decision not to question members about qaeda and other organizations, we do not have a lot of information that we might otherwise be able to get. this strikes me as problematic. instead, we have an administration that has decided to compile a kill list for inrorists using armed drones
the light. that strikes me as problematic as well. if you're just going to use that to kill terrorist, he certainly do not know anything about any of the other information that would be helpful from an intelligence perspective and save american lives. you believe the memos from the office of legal counsel that have authorized the use of kill armed drones including american citizens, that those >> id be made public? pre-k' think transparency is a very important value. i am not in a position to say that from this vantage point. differentiating between terms of your
transparency commitment between what was revealed during the last administration and what should be revealed here. >> the same values, same principles. 's strikes me as a lawyer argument that we really would be interested in to know how, what sort of process would be required as a prudential matter improper useainst of that kind of ultimate authority to kill an american citizen. that would be something if kept secret would tend to undermine public confidence if there is not a good lawyer's argument that would satisfy in a court of law that this was necessary and properly applied. it would post her public confidence. >> that is right as a general matter. i think transparency on these matters tend to bolster peoples
confidence. again, there may be good reasons quite an opinion would need to remain confidential or classified. i cannot say this about the particulars. >> i do not suppose you have seen them. i would not ask you to pass judgment on some think you have seen. certainly they could be read it would give some rationale and see how it would be addressed especially when it is about american citizens. they use this while you are a member of the bush administration. why did you not resign if you object it to those techniques?
resigned by the time this came up. i announced this in mid-april. this came up in late april toward the end of may. i announced in mid april i would leave before the end of the summer time. i decided to stay because there were a number of things i needed to complete, especially on violent crime. >> were those of sufficient seriousness to your mind that if you had not artie announced your intention to resign they would be design worthy or justify your resignation, that sort of serious disagreement? >> it is hard to answer looking back. i would have given it very serious. >> my time is up. thank you. >> thank you very much. thank you. welcome to your family.
they are very stoic behind you. >> they were instructed. >> one of them was assigned to play senator blumenthal and a high school debate and miraculously won the debate. >> she swept it. >> you and i went to law school together. we were in the same class. i love how you are pointing her out. we all see her. in the samere class in law school. people often wonder what people were like before their were shining lights in their face. i can tell my colleagues that decente an incredibly person and a lot of fun to know. i want to thank you for. i know there are classmates around two. i have an urge to mention their names. mcauley should know that they called our class be happy class because we started the first law school musical.
i think -- i hope they're watching this hearing and see both of us here and what a are doing.ou >> most of my colleagues have focused on the important work you have done in the past in the law. this we can all agree that , it is is for victims of complex fraud. this is how i always thought of the at the eye. one of the things that has not come out as the work you did in richmond restarted the project x file. we copy this program in minneapolis years later. when the effort began i know it was supported by the nra and the
brady campaign. it spread across the country. can you talk about that work and how it will inform your work as head of the fbi? thank you very much. that was some of the most rewarding work i did. they had a horrific violent crime problem, isolated in the minority community. idea behind it was what if we used the federal penalties that came with gun possession offenses. penalties. what if we use those to try to change criminal behavior and make this a liability? in richmond the average criminal but just for the evening and put on shoes and socks and gun with equal reflection. what if we can change that so they are afraid to have that
done? the first part was really aggressive prosecution of gun protection climbs. nhis was the idea of a assistant u.s. attorney. what if we hired an advertising agency and they work for free to sell it to the bad guys. they created a brand and bought billboards in bad neighborhoods and buses in television commercials and print a little cards with our slogan. they gave out thousands of them. advertising works. the criminals became more afraid of us than maybe they should have been. said any legal gun get you five years in federal prison. gotocked one guy up and he seven years. he said the damn ad says five. an unhappy consumer was our goal.
it changed the community and behaviors. your brother were held hostage by a armed burglar when you were young. you were able to escape cap city -- captivity. he said that give you a keen sense of what victims of crime feel. could you talk about the current f b i and how you see their role with filing crime, knowing mosys headed on the local level? . would add to those the fbi has a vital role to play in critical enforcement. this is a challenge for him given all the things on the fbi played. at least on the outside it looks like he has been smart and use leverage to achieve the objectives by forming good
relationships on violent crime in particular. the fbi has long been accused of not playing well with others. i think that is a miss in general. i know he has pushed to change that perception and reality. he is also indispensable. you beat an agency that can devote the resources that has the expertise to plow route stacks of spreadsheets to find the evidence of the fraud. that is very hard for law enforcers to do. >> very good. i am the daughter of a reporter some asking this for my dad. i've seen both sides. moving the importance of forward and protect the public safety. i am a cosponsor of the free flow of information act. this protects the freedom of
the press. can you talk about your views on how law enforcement should balance one of our nation's most cherished strikes? law-enforcement can balance of these.ing both these are secrets we must keep. we have to investigate their loss. that may lead to bumping into the media. essential to what a remarkable country that is. sometimes it is a pain in the neck. an enforcer has to keep most of those in mind. work it so you keep both of those values. you will make mistakes. i gather this is different. >> i have a question i'll just
put on the record about the human trafficking report. i know a lot to my colleagues have been waiting for a while. will stay open until noon on friday for any questions to be submitted. this is a week from thursday. >> thank you. welcome. thank you for your testimony this morning. thank you for your long public service as well. ihave a number of topics would like to discuss. i wanted to start by talking about the irs. as we have discussed in my office, there have been multiple reports of the iressa improperly targeting groups based on political speech, based pro-israelpousing
views. there is an ongoing investigation. your predecessors who i like and respect has received some criticism from not appropriately prioritizing that investigation. there have been multiple reports that many of the groups were unfairly targeted by the irs have yet to be interviewed by the bureau. what level of priority should the investigation into the allegations of misconduct and political targeting, what level of priority do you believe that should hold that the bureau? think i had seen him say a similar thing. i appreciate that commitment. or her the bureau
department asked to investigate byegations of wrongdoing the administrations, in particular wrongdoing that raises at least some concerns about confusing partisan politics and what should be the fair and impartial administration of justice, and that puts the bureau in a delicate position. they use this to target the political enemies. there have been similar concerns raised here. thate have your commitment this investigation you will pursue every lead vigorously regardless of the political consequence? >> absolutely. in this and all other investigations.
>> let's shift to a different topic. theve been concerned about current administration's alan of the rights of law-abiding citizens on one hand and the seriousess to pursue terrorist threats on the other. am i view the balance has been wrong on the one hand, not fully respecting the constitutional rights of the united states constitution and not vigorously going after radical islamic terrorist and acting to stop terrorism before it occurs. one of the aspects right thing the administration has been less than fully protective of the citizens it deals with drugs. i would like to ask your view as thatyer, do you believe
the constitution allows the united states government to use a drone to target with lethal force a u.s. citizen on u.s. does nothat individual pose an imminent threat? >> no. >> thank you. i agree with that answer. the current administration has not always been so forthcoming. >> i want to talk about the other half of the balance. stopping terrorism. ironically, although the administration has been willing to sweep law-abiding citizens the the surveillance administration and the bureau has been left -- less than vigorous tracking down intelligence. weree where there multiple reports for the need
for additional security. we say with the boston bombing it is a very distressing pattern where the u.s. government dropped the ball. we had the government of russia that notified is strictly about the concerns about these are not that he that told us was a all aware of radical islam and they had fears of terrorist activity. , hisureau interviewed him family, concluded they did not find any terrorist activities. it appears dropped the ball after that. after that interview we now know that he traveled to chechnya without any apparent follow-up from the bureau of the new russian national securities --
or the u.s. national securities. he published a youtube hate with jihadist propaganda on it. the bureau missed that. we know he was also affiliated with one who pleaded guilty to illegal transactions with the illegal -- with the government and a role to assassinate abdullah. it appears with all of these warning signs the bureau did not follow up on the credible information it had and tragically, because the dots are not connect to, we saw horrific bombing occur in boston. similarly in fort hood, the murder that occurred there, the
fbi was aware that major hassan had been e-mailing with the al qaeda cleric in war all walkie himn war all walkie about killing his federal soldiers. forad made a presentation espousing jihadist views. i have a real concern that fears of political correctness -- >> there is a time of. do you have a question? do you share the concerns about the bureau being either unwilling or unable to connect those dots?
american about the citizen who was accused and has since been convicted of providing materials for a terrorist arrested on american soil that was subsequently transferred with your support to military custody. while in military custody he went almost two years without having any access to an attorney. . abhor the police and actions he deserves to be punished. i have to say i was dismayed by an american can be detained in his own country for two years without having any contact with an attorney. i asked you this question in our meeting yesterday.
i was not satisfied totally with your answer. always havecitizens the right to talk to an attorney when they are detained by their own government on american soil? reasons you may not have been satisfied, i'm not sure i am expert enough to give you a good answer. i think it is yes, except when that person is detained as a prisoner of war in an ongoing armed conflict. the person does not have a constitutional right to counsel. ins is a decision they took this case. >> who determines whether that person is a prisoner of war?
on americancitizen soil? who makes this determination? a rightthat person have aman -- an attorney to say i not a prisoner of war? >> they have access to the courts to file a habeas corpus .osition to challenge that person is involved in an armed conflict with united states. they have a constitutional right to have a lawyer. as a matter of his ability to oversee habeas corpus petitions, he ought to have a lawyer to assist him. i do not think the judge thought he had a constitutional right to counsel. one off horrific case that was a very difficult one.
it is obviously not a settled area. >> ok. the wiretaps. to a number of my colleagues have on this coming into the hospital. i commend you for those actions. last month the new york times reported that you did not object to the key elements of the bush administration's program, the wiretapping of american citizens inside the united states. the nsa couldgram eavesdrop on up to 500 people in the u.s. as long as one party to
the call was brought up. it had not been reviewed by the court. how do you respond to the allegation that you do not object to the wiretapping program? i have to be cautious in the way i answer. a lot of the things i was exposed to a still classified. i do not think it is accurate. i do not think it is accurate. can you say in what way it is accurate? the office of legal counsel
concluded that the president could lawfully, relying upon the use target the use of al qaeda and associated forces. writteno issued a opinion that it could be done with content. it is different than that. >> let me move on to sleep deprivation. sleeplked about how deprivation can be torture. this is what they say about sleep deprivation.
-- change toged the ceilings. the detainee has approximately a two or three foot diameter of movements. his feet are shackled to a bolt in the floor. it wears diapers and sleep deprivation can cause the. that is torture, isn't it -- isn't it? >> someone says that does not violate the big statue. there is this the question that the description cries out.
that was the memo you approved. of separate methods that was talked about. >> thank you. >> thank you. i will yield to her. i am going to leave. as theyot be back finish this up. we have known each other for a long time. i want to take a moment to compliment all of your children. we can kind of go in and out and check other notes in whisper back and forth.
they are riveted with interest on everything you are saying and they are probably thinking wait until we get him home and tell them what we really inc.. yourwant to compliment family. the same thing i said to director mueller. mean a big sacrifice on part of the family. inse of us who spent time government realize that. i compliment you on that. >> we will hear from senator blumenthal. in the committee will stand in recess in the record will be kept open to noon on friday for
further questions. thank you very much. i do apologize for having to leave the hearing. i know that i'm going to have an opportunity to chat with you this afternoon. thank you for that. apologize if some of the questions have already been covered by my colleagues. i know the questions regarding waterboarding, and you acknowledge that you are in disagreement with the use of waterboarding by the cia. potentially you will become the head of the fbi and the fbi does not utilize those forms and you would continue that policy. >> i would. the fbi does not use any abusive interrogation techniques.
that would say the same. >> i think it is very important in the context of other agencies using some of these enhanced irrigation techniques that we have the at ei that will draw the line. a lot of been discussion around the surveillance programs and the oflection of trillions pieces of information in this program. legality of athe given surveillance program, do you believe that government surveillance of u.s. citizens can go too far? yes. >> it seems in a program where
millions of pieces of information go, where do we draw the line at going to our? it is hard for me to answer from this vantage point. i am a private citizen. i do not know the details of the programs involving metadata that are going on right now. about watched testimony safeguards around the metadata collection. all of these sounded reasonable to me. say att know enough to this point. that the collection of this kind of information is very important. he used the description of connecting the dots. that willknow where come from, whether from the collection of millions of this kind of information or not.
if that is the answer, if you start thinking about what the parameters may be, it seems as though there would not be any are amateurs. how could you define when that dot of information will arise. you will give some thought into what the parameters might be. too far government go when collecting data from millions and millions of u.s. citizens who have done nothing wrong. i think you also mentioned that you are engaged in the f ei and it needs to now engage in a cultural change. at the same time they have a to go aftermission
white collar and other criminals. i think there might be some concerns in the law enforcement community as to where the priorities will be and what percentage of your mission will involve the kind of intelligence gathering versus the traditional crime-fighting role bf ei undertakes. that balance?ee you can respond in terms of percentage of your resources that will go toward this new kind of crime versus the traditional white-collar and other time -- types of crime. >> i do not think i can be too specific from this vantage point. i know it is essential that the fbi to both.
addressed those vital criminal needs with things like public corruption and white- collar crime. from this vantage point i will confirm to understand what is going on before i can make any prescriptions for how i wish i he balance. i know it is a constant challenge. this is about all i can say from here. get confirmed, you would be responsive for questions we would have that would follow up. you would follow up and you would be in a much better position to provide us with responses. >> i suspect you will see a lot to me. >> he will make the commitment. >> yes. >> thank you. i do not know if there have been questions relating to the civilian use of drones. that is a burgeoning area of concern for us. do you have any security concerns about criminals to
conduct surveillance of potential targets? >> i do. aknow from the time as private citizen reading about the increasing availability of what itiwatch to me was a sobering video of someone who put a firearm on a drone and fired it remotely while flying one of these cheaply acquired drones. it is certainly something that lies in our future. >> i do not know enough to give a definitive answer. authority. fbi has i don't know any are specific.
i would ask this of you. >> this is a good time for us to review the very specific cause. they were addressed by the civilian community. >> i will do that. i will alert the department of justice to do it, too. >> thank you. my time is up. >> thank you for your patience and your testimony. let me begin by thanking you will him -- thank you for bringing clarity to the hearing. i am particularly posture -- partial to the name. you can be me anytime you want.
i just want to say the fact that i am able to joke about one of your children i think reflects the very solid support and lack of any need to rehabilitate the witness. i think you have done an excellent job on looking forward confirmation. i do have a few questions. one of thening with topics that are covered to take. -- today. i take it not only that you would suppose the use of such enhanced interrogation like waterboarding or other forms of interrogation that could be regarded but you would also use the fbi cost resources to investigate this kind of violation of law if you found
reason to think they were occurring. >> there's no question you were oppose those kind of sieges with in the administration and recommend that prosecution be undertaken if anyone engage in such practices. >> that is correct. that would be without lawful authority. it would be a violation of law. >> let me turn to another subject that is close to my heart and anyone might myself who lives in connecticut. the answer to this question may be self evident. i take it that you would theort with great vigor administration in support of background checks, a ban on theult weapons and
position and proposals of the administration to combat gun violence. yes, senator, i think you would find that i would approach such as is bob mueller what. >> thank you. resources to investigate as you did in virginia, not only for their own sake, but also because so many of those gun violence, related to other kinds of crime, whether drug dealing or extortion, can you talk a little bit about the importance that you would bring to violations of our gun violence prevention laws as the director of the fbi? >> yes, senator. in general, the an portion of those -- the enforcement of those laws is essential. i always believed that a gun in the position of a felon or a drug dealer is a homicide that
has not happened yet. inhink the fbi's role addressing those particular offenses more in the context of violence crime cases, game and -- gang cases, but i have a passion for this across the board, and i will ensure that we continue to do what director mueller has done, look at those in the series of these complex gang case is tough. >> i welcome that passion. i think it is important because of you know what of the arguments made against the improvement of these kinds of that not enough prosecutions are undertaken under existing laws. i strongly support stronger and more frequent prosecutions under existing laws, even as we move forward to improve those laws. i take it that you would agree. >> yes. an area that ito
think is very important. you have addressed it in part. letter yesterday to my colleagues on the issue of nsa silver -- nsa surveillance and in particular the fisa court. i take your point and agree with the that any assistant united states attorney or department of justice official who, in effect, failed to respect a district court judge in seeking a warrant were there was no reasonable suspicion or probable cause to do so would soon lose credibility and would undermine not only his or her credibility but also the office's. rigorous as you have been, and i think all of us are who have been federal prosecutors, in that ex parte process. context of the
federal criminal procedure, there is ultimately a public proceeding when evidence is thought to be introduced in court. and there are challenges to admissibility. there is no such adversarial process any fisa court, so i propose that there be some special advocate, in effect a defender of constitutional rentable, to make sure that the other side is heard, if there is another side. i support declassifying and disclosing some of the opinions and rulings where possible, so i have joined in supporting the measure that senator schumer and senator derman mentioned. but aside the closure of declassification issues, isn't there a role for the adversarial
process in some form when law is sa court, whether it is on the meaning of relevant or other kinds of key legal standards and criteria for the issuance of warrants or other kinds of means of surveillance, search, seizure amone, where reductions of privacy and liberty are emanated? >> i have not thought about it well enough to give you an answer. i would hope the department of justice would take seriously that kind of suggestion and think it through in a way that i cannot see here. >> i welcome your receptiveness to thinking more seriously about some kind of adversarial process in the fisa court so that law is the result of litigation rather than simply
fiat. i know that that characterization may strike some as unfair, but i would hope to work with you, and i hope you'll work with me and other colleagues on trying to reform the fisa court in that way. i also, by the way, think that you have raised a very important point, that the american public does not fully understand the way the fisa core works, has no inkling in fact in many ways of the way it works. one of the aspects of the fisa court is that the chief justice acting alone appoints members of the court. anhink strictly from appearance standpoint, that could be regarded as raising questions about the accountability as well as the transparency of that procedure.
there is no other court that operates in that way. i understand that fisa court is different from the court of claims or other similar specialized courts where justices are appointed for a term of years with the advice and consent of the senate, but i would invite you are thinking about that issue as well. i recognize it may not be within your direct purview as the director of the fbi. i think in light of your experience as a federal prosecutor and litigator, i would hope perhaps you would work with us on that issue as well. >finally, and maybe most i join you, i share with you a tremendous admiration and love for the fbi. that has doneion great good for the country and
has some of the most talented and dedicated public servants in america. i wonder if you have given thought to how the fbi can continue to attract the very best talent both women and men to its ranks? , enough tonator know that it is something i am keen to learn about, and not just because i have four beautiful, talented daughters sitting behind me, but because i know diversity in all institutions is essential to excellence. especially if you're going to in first -- to enforce the married of laws the fbi has to enforce. i am keen to know, and this is a passion of bob marler'ueller'w they are approaching that. the head of hr and your head of technology, i am eager to learn how they are approaching recruitment, promoting training
people of all stripes. from this vantage point, that is the best i can say, but i'm sure you will hear more from me about it. >> i hope to hear more from you about it, and i hope you will let us know what we can support or help you in that effort , one of they view most important tasks and challenges that you will have as director of the fbi. thank you very much, and again, my thanks to you and your family. i'm going to ask senator cummins senator k now to ask what he wants to ask. >> i was moved by that i was moved by the thing he said early about your children and the foster children. the task you are about to take on, as fbi director, is central to the security of the united
states, to the enduring vitality of our constitutional liberties, and to the fate of our nation, so this is a very important task, and i take this confirmation seriously as a result, and i appreciate how seriously you have taken it in the answers you have given so far. as many of my colleagues have noted previously, your record serviceat -- and prior during a bush demonstration gives you significant familiarity and some response ability for some very controversial decisions, in particular with the regard of enhanced interrogation techniques. in my view, and the last administration, legal opinions were improperly used to facilitate acts of what is now broadly understood to be torture. i appreciate your answers rick beasley in response to the chairman, and i will rely on them in my support for your nominations. i think americans will rely on you to defend their civil liberties and what are difficult times. your prior involvement and also addressing the surveillance authority is also deeply
relevant. here is my hope you will be a force for openness and transparency as you have committed to this panel today. particularly with regard to clarifying the legal roles of the road senator blumenthal was just saying, transfer and the and openness at this time in particular is essential to the role you will be undertaking. -- could youen comment on how you plan to address the current classification standards, and whether you consider loosening them in response to senator durbin earlier, you said transparency is a key value and that people would be better off if they knew more rather than less. how will you take an affirmative effort to ensure the classification is as minimal as is necessary? , senator.ou first, as fbi director, i would try to understand how are we approaching it at the fbi when the fbi is the classifying authority. i have a sense from my time in
government that there is a reflex to classify and to up the classification, but from this vantage point, i do not know how the bureau is approaching appeared with respect to the broader questions, to the said i'm involved in those issues about fisa court opinions, i wasn't would be a voice, as i hope i was here, the importance of the value of transparency, obviously allinson the other things i have to worry about. for example, taking being fisa court opinions, i think that is largely a question for the director of the national intelligence, but i hope i would be involved in the discussions about that. i would bring with me that commitment to that value. >> i think director mueller has laid out a long and important record in both of these issues, in particular in standing up against torture as well as standing for openness and transparency. it is my hope you will continue in that tradition. senator mentioned to blumenthal that two of the most important folks he will be looking for are your head of hr and your head of technology.
i am sure you are familiar with director mueller's assessment that the fbi is someone behind me curve when it comes to countering cyber crime, and a person -- a piece of that is not having the arsenal needed. in the time of sequestration, that may be particularly difficult. how do you ensure the fbi catches up its current and is fully story in one of the most important fronts against crime? >> you spoke about being behind the curve, it is a curve that is moving away from us at great speed. the first and i intend to do is understand what is going on now, what shortfalls there are. 'scome in with robert mueller sense that this is a vital area to be addressed, and understand where we are falling short, and then to make appropriate trade- offs, if i cannot get the money and resources, shall to the heavens that i need the money and resources. from this vantage point, i do not know, but it is something i will focus on very early. >> one of the things i'm concerned about the amount of
both counterfeiting that is coming out of the people's republic of china, there was a report that was just put out suggesting 76% of counterfeit that's worldwide are chinese of chinese origin. there are a great deal of trade secrets asked, doj trade secret cases are relatively well, between 10 and 12 of the last 20 years. i was wondering whether you think u.s. law enforcement could do to be a better partner with companies that are facing either lost intellectual property or that have become victims of industrialized espionage or hacking in some way or have lost trade sector it's -- trade secrets. workingnk key to together better is talking more. i think that coordination, which i know the bureau has been pushing, to understand the threats. i just spent eight years in the
private sector at two different companies that were keenly focused on this threat of someone stealing their intellectual property. i think it is vitally important that the government and private sectors be together very closely because the information about the threat often lies in our wonderful private enterprise system, but it is in those little prop -- little pockets of those companies, so to be able to address that on a global basis, to find out what is going on in each of those pockets of industry, and that requires conversation, a lot of conversation. >> last question, i was responsible for a county police agency, so i am particularly passionate about state and local law enforcement at the cochair of the senate law enforcement caucus. i'm trying to encourage closer working relationships between federal, state, and local law enforcement. in your experience at the u.s. attorney and other roles in the department, you have had some really exposure to how it works well when it works well, and how it breaks down when it is not.
only something about your plans as fbi director to fully engage with state and local law enforcement, in particular with regards to emerging threats like cyber crime or ip threatefts. >> i approach it with the understanding born of decades of experience that nobody can do it alone, that federal, state, and local enforcers in a particular jurisdiction and across jurisdictions have to operate and work together. especially true to the fbi to so many things on its plate, find a leverage to achieve its goals, not leverage lies in the amazing people of state and local law enforcement. i will understand better once i am in a job, but my long practice has been we have got to build those relationships. >> thank you. i appreciate your testimony today. i appreciate your willingness to serve. i noticed the visible relief on the faces of your family that this hearing is that last coming to an end. senator blumenthal, did you have the closing announcements to, or should i?
>> tomorrow over on c-span two, we will bring you the role of the united nations. first, federal reserve ward never talks about implementing the dodd frank law signed by president obama three years ago. that is life at 8:30 a.m. eastern on politico. then head of the yuan's dilip -- diplomatic arms speak that the brookings's editions about the exterior and -- about the syrian civil. that is live at 11:00 a.m. eastern. , the president's privacy and civil liberties oversight board hears from legal experts on the nsa's data collection and surveillance programs. the board for the existence was originally recommended by the 9/11 commission. it is not have power to enforce its recommendations. this is just over two hours.
>> good morning. welcome to the third public meeting held by the privacy and silver liberties oversight board. i want to first introduce my fellow board members, rachel brand, pat, -- and jim dempsey. pcob is a an- independent in just see -- agency within the executive branch. we were created by congress. the board for the primary missions are to review and analyze actions by the executive ranch to attack the nation from terrorism and ensure the need for such accidents -- actions is balance with any to protect civil liberties. to ensure that liberty concerns are are appropriately did considered in need of element and and limitations of laws, regulation, and policies related to protecting the nation from terrorism. pclob has an
advisory role. i want to thank our many panelists throughout the day for part is bidding in this workshop and share their views about these important programs of the board. i also wanted to thank the boards chief administrative officer and our chief legal officer for their tireless efforts in making this event possible. our focus today will be on to federal counterterrorism programs, section 215 under the usa patriot act, and section 702 under the fisa amendment act. the purpose of the workshop is to foster a public discussion on legal, constitutional, and all of the issues related to these programs. has agreed to provide the president and congress a report on these two programs along with any recommendations it may have. today'sound rules for
workshop. we expect the deception -- the discussion will be based on declassified information. however, some of the discussion will and never lay touch on leaked classified documents or reported documents. stickers may choose to reference these classified documents for information, but they should keep in mind that in some cases, these documents still remain classified. therefore, speakers are urged to avoid cumbre me the -- avoid confirming the validity of the documents. there will be three panel today. the first will focus on legal issues, the second on technical aspects, and the third on policy. after the first panel, we will be taking a lunch break. two board members will moderate each panel and propose questions, and additional members may have follow-up questions. panelists are urged to keep their responses brief to submit the greatest possible exchange of views. at the end of the day, there
will be some time for members of the audience to make statements about these two programs. this workshop is being recorded and a transcript will be posted on what we hope will be pclob's website active this evening as a well -- as well as on regulations.gov. those who wish to submit written comments are welcome to do so, and comments may be submitted on regulations.gov or by mail until august 1. i would to start by setting the discussion. theescription that follows two programs is based on information that has been publicly disclosed by the federal government. it should not be interpreted as saying anything new but these rogue ram spirits -- about these programs. it is a summary of unclassified remarks i federal officials. pclob has not come to any conclusions regarding the accuracy or completeness of this information. the couple things in common 22 programs -- both are designed
to identify terrorists and if possible prevent terrorist plots. the criteria for such orders are made different for each program. in both, it is possible that even with the best intentions, the government may collect or access information beyond what is authorized, leading to questions about how such information should be handled. programs have been subject to leaks by mr. snowden. the first program is based on section 215 of the usa patriot act, which was reauthorized by congress in 2011. sometimes this is referred to as the 215 business records collection program. one of the things the government collects under 215 is the telephone metadata. allows provision that the government to obtain business records for intelligence and counterterrorism purposes, the government argued that the collection of this information must be brought into scope, as more narrow collection would
limit the government's ability to identify terrorism related communications. the metadata that has been collected this runs telephone call such as the telephone number making the call, the telephone number dialed, the date and time the call was made, and the length of the call. the government take the position that is either considered -- that these are considered business records of the telephone cubbies. this robot is not collect the content of any indications nor the identity of the persons involved with the communications. intelligence community representatives have stated that cell phone location information is not collected, such as gps or cell tower information. in approving the program, the fisa court has issued two orders. one order is the type that was leaked is an order to the telephone for biters threatening to turn information over over to the government. it has been asserted that the other order spell that the limitation of what the government can do with the information after it has been collected, who have access to it and for what purpose they can
be accessed and for how long it can be retained. court orders must be issued 90 days for the program to continue. once large quantities of metadata have been collected, a could be subjected to sophisticated analysis to drive information that could not otherwise be determined. this type of analysis is not permitted under this program. the metadata can only be queried when there is a reasonable suspicion that a particular telephone number is associated with specified foreign terrorist organizations. even then, the only purpose for which the data can be queried as to identify contacts. the input and output of this program is limited to metadata. in practice, only a small portion of the data that is collected is actually ever reviewed because the vast majority of data is never going to be responsive to terrorism- related curries. 2012,are he spirit in fewer than 300 were identified. the russian all for this program is that because all the metadata is selected, if you
want to find a needle in a haystack, you need to have the haystack. surveillance of particular u.s. telephone numbers requires a court order based on probable cause. i'm turning up to the second problem -- program under 702. 702 of the foreign intelligence surveillance act, it it has been referred to as prism. prism is a must owner. it is the name of a government database. under section 702, which was reauthorized by obverse and december 2012, information is obtained with fisa court approval. and rain cover mission by the director of national intelligence to acquire foreign intelligence information. a non-us person, somebody who is not a citizen or permit
residents ailing, located outside the, for foreign intelligence purposes, without obtaining aces of it weren't for each topic -- target. without obtaining a warrant for each target. section 72 prohibits reverse targeting of u.s. persons. it is not target any u.s. person or any person it in the unit phase. in order to obtain fisa court the provision of terrorism, hostile cyber activities, or nuclear proliferation. procedures for ensuring individuals targeted for collection are reasonably believed to be u.s. persons located outside of the united states. they must also the the approval of the government's procedures for what it will do with the information about a u.s. arsenal someone in the united if they get that information through this collection.
court-approved procedures determine what can be kept and what can be disseminated to other government agencies. -- about u.s.ve persons is expressly prohibited. or indicates crime in an imminent threat of death or serious bodily harm. the intelligence community asserts that can indications collected under this program have provided insight into terrorist networks and plans including information to terrorist organizations strategic mining efforts, contributing to it being the proliferation of weapons of mass destruction, and cyber threats. we will turn out to our first panel, which will focus on legal and constitutional perspectives on the two programs. board members rachel brand will moderate the panel. >> thank you, david. good morning, everyone. thank you for coming. i'm rachel parents, -- rachel
brand. mcauley, patricia wald, and i are focusing on the legality of it, the policy of locations will be discussed in a later panel. we have a panel of five distinguished x were to give us their views on these issues. i will introduce the minimum appeared each of them will have up to five minutes to give opening remarks cured our read,l counsel has cards and green, yellow, and then each panelist will have up to two minutes to give responsive remarks, reflections of what the other panelists of that. pat and i will then ask a series of questions to the panel, and for the last 15 minutes, our colleagues on the board will have a chance to ask questions as well. our panelists are steve bradberry, a partner at a large d.c., jamal jeffers, aclu, currently involved in a constitutional challenge in court for one of the programs we are talking
about today, kate martin is the director of the center for national security studies, james robinson is a former u.s. asserts judge, and ken weinstein is a partner at -- and served previous the as a homeland security adviser as the head of the national security division and as a u.s. attorney here in washington. steve, we will start with you. >> thank you, rachel. i appreciate the opportunity to participate today. i will focus my opening remarks on the telephone metadata program. at the government has stated, and david summarized, this program is supported by section 215 business records order, which must be reviewed and preapproved by the federal judges who sit on the fisa court every 90 days. i understand that 14 different federal judges have approved this order since 2006.
the metadata acquired consists of the transactional information that phone companies retain for billing purposes. it includes only data field showing which phone numbers called which numbers, and the time and duration of the calls. this order does not give the government access to any information about the content of calls or any other subscriber information, and it is not enable the government to listen to anyone's phone calls. data is limited under terms of the court orders. there is no data mining or random sifting of the data permitted. the database may only be accessed through queries of individual phone numbers and only when the government has reasonable suspicion that the number is associated with a foreign terrorist organization. if it appears to be a u.s. number, the suspicion cannot be based solely on activities protected by the first amendment. any query of the database requires approval from a small circle of designated nsa officers.
a query will simple return -- we'll simply return a list of any suspicious numbers called, and any numbers that have called it, and when those calls occurred. that is all. the database includes metadata going back five years to enable an analysis of this oracle connections. -- of historical connections. any connections found numbers inside the united states will be of most interest because the analysis may suggest the presence of a terrorist cell in the u.s. based in part on that information, the fbi may seek a separate fisa order for surveillance of a u.s. number, but that surveillance would have to be supported by individualized probable cause. the nsa's debbie director, and his david mentioned, has this past has testified that in all of 2012, there were fewer than 300 queries of the database, and only a tiny fraction of the data has ever been reviewed by analyst. the database is kept segregated, and is not at that -- access
for any other purpose. nsa requires the government and me, requires a minimize of any analysis generated by the query. the 215 orders also subject to oversight by the executive branch and congress. fisa mandates periodic audits and reporteing to members of congress pared with section 215 was reauthorized in 2011, i understand the leaders of congress and members of these committees were briefed on this program, and all members of congress were offered the opportunity for a similar briefing. let me address the statutory and constitutional standards. section 215 permits the acquisition of business records that are "relevant to an authorized investigation to g." metadata isephone
relevant to counterterrorism investigation because the use of the database is an essential to conduct the leak analysis of terrorist phone numbers that i have described. the sub of analysis is a critical willing brought -- building block aired in order to connect the dots, we need a writer set a telephone metadata, that is what this program enables. the legal standard of relevance in section 215 is the same standard used in other contexts. it does not require a separate showing that every individual record in the database is relevant to the investigation. satisfied that the use of the database as a whole is relevant. it is important to remember that the fourth amendment does not require a search warrant or other individualized court order in this context. a government request for business records is not a search within the meaning of the fourth amendment. government agencies have authority under many federal issuees to
administrative subpoenas without court approval for documents that are relevant to an authorized inquiry. 's havetion, grand jury brought authorities to subpoena records potentially records to whether -- potentially relevant to whether a crime has occurred. in addition, the fourth amendment does not require a warrant when the government seeks purely transactional information or metadata. voluntarilytion is made available to the phone company to complete the call, and for billing purposes. courts have therefore said there is no reasonable expectation that it is private. i would stress that section 215 is more restrictive than the constitution demands a cousin it requires the approval of the federal judge. fore the 215 order metadata is extraordinary in terms of the amount of data acquired, it is also extraordinarily protective in terms of the strict limitations rest on -- placed on accessing
the data. for these reasons, i think the program is entirely lawful and conducted in the manner that appropriately respect the privacy and civil liberties of americans. thank you. >> thank you, c. jamil? >> thank you for the answer to it -- the invitation to participate. since these programs word this close, much of the public debate has focused on issues of policy. i think that is understandable. no government has ever trained this kind of surveillance -- trained this kind of surveillance tower on its own citizens. until recently, none have had the technological power to do that. we need to think carefully about how the exhortation -- equitation of new technology could affect liberty -- generations that americans have fought to protect. these programs are not as unwise, they are on positives on as. i'm going to focus principally on the 215 program with the hope to return 2702 later on.
under the 215 program, the nsa collects metadata about every phone call made or received to a resident of the united states. some of these reports indicate that the nsa is collecting internet metadata as well, making a note of every website americans visit, and every e- mail he or she receives. the program is a massive dragnet, one that raises many of the concerns associated with general warrants. that is, many of the concerns have led to the adoption of the fourth amendment in the first place. you might say that these section 215 orders are general warrants for a digital age. i haveesident and the dna - said they are collecting metadata and not content. the subject of that -- the suggestion that metadata is beyond the constitution is wrong. the crucial question is not whether the government is collecting metadata or contents, but whether it is invading reasonable expectations of privacy.
here, it clearly is. the supreme court was the recent decision is instructive. in that case, a unanimous court held that long-term surveillance of an individual's location constituted a search under the fourth amendment. the justices reached that this close -- that conclusion for different reasons, but at least five justices were under the view that surveillance amount ofa reasonable privacy. -- "a precise, hints of record that represents the wealth of her familial, political, religious, and sexual associations." the same cannot be said under section 215. call records can reveal personal relationships, medical review, political and religious affiliations. metadata may even be more revealing, which article she read, who she corresponds with,
and to those people correspond with. the long-term surveillance of metadata constitutes a search for the same reasons that the long-term surveillance of location was found to constitute a search in jones. in fact, the surveillance i was found unconstitutional in jones was narrower and shallower than the surveillance now taking place under section 215. the location tracking in jones was meant to further a specific criminal investigation into a specific crime, and the government collected information about one person's location over a period of less than one month or what the government implemented under section 215 is an indexed government program that has already swept up the communications of millions of people over a period of seven years. some have argued that the program under section 215 is lawful under smith the maryland, which upheld the pen register in a criminal and definition. it can registry the numbers being doubt, but it did not indicate which calls were completed, let alone the
duration of the call. israel and was directed that a andral criminal suspect -- it was directed at a federal criminal suspect. another argument in defense of the metadata program is that though the in and -- nsa collection a lot of information, it only investigates a fraction of it. firstme is true b amendment, because the chilling effect of government surveillance stems from the collection of information of not merely the analysis of. because addition is not indifferent to the government's accumulation of vast quantities of sensitive information about american lifves, neither should the board be. other countries have aspired to total awareness of their citizens associations, movements, and beliefs. the experiences of those countries should serve as a caution to us, not as a road map. thank you again for inviting me to participate, and i look forward to the board's questions.
>> thank you, kate? >> thank you also for inviting me and given me this opportunity to participate today. i want to take this opportunity raise some overarching concerns, which i hope the board will address before making specific recommendations about necessary changes to either sections 702 or 215. and begin by quoting senator sam ervin who and 1974, as the author of the privacy act, noted that the more the government knows about us, the more power it has over us when the government knows all of our secrets, we stand naked before official power. the bill of rights then becomes just so many words. i think it is not debatable that secrecy increases the danger that the government will overreach. nor the debatable that foreign
intelligence activity depends to some degree on secrecy. and that a democracy must continually work to figure out ways to provide for the national defense while respecting civil liberties and preserving constitutional government. the increase in technological surveillance capabilities, global connectedness, and the reliance on electronic communications and daily life has made doing this more complex and even more important. whether or not the expansion of secret government surveillance and secret legal authorities, especially in the last 12 years, requires us to ask whether we are witnessing be serious erosion of our constitutional system of checks and balances, and the rise of a system of secret law. decreed by courts, carried out in secret, enabling the creation of massive secret government databases on americans personal
and political lives. as you know quite well, the system of checks and balances relies upon first the existence of a congress, which engages in and is influenced by a public debate. it relies upon the existence of courts, which hear two sides to a question, and know their opinions are subject to appeal and subject to public critique. and finally, an executive branch, who will be called to account should they ignore or violate the law. fundamentally, all of this anends upon the existence of informed and engaged public and press. so why does it matter? it matters for two reasons -- first is that the system is set up in order to prevent the
government from breaking the law, and to assure that if it does go, that will become known, and the executive branch will be held to account for doing so. secondly, the system is meant to the government from using its surveillance capabilities to target its chillcal opponents, to political dissent, and to limit the political debate and options in this country. this is not a theoretical concern. in my lifetime, it has happened many times already in this country. perhaps later on i could detail what i find to be the shocking revelations of the history of these programs, beginning in 2001, and resulting in where we are today, where we only learned
through unauthorized leaks that there is at least one secret opinion authorizing the massive yollection of telephone h metadata. we still do not know what the secret law is about the collection of massive amounts of internet metadata, although we presumably this administration has stopped that. we have no idea whether or not there is law that would permit that to resume. i think that the question we need to ask is whether or not the system of checks and to bees is -- needs reaffirmed so that it acts as a safeguard against these two harms. -- i think the history of the debates on these issues
in the past few years the debate hast been incomplete. it has been informed by inaccurate information at best, supplied by the government, if not deliberately. finally, i just want to note that i worked on these fisa issues for almost a quarter of a century, and i think that probably of the many civil liberties voices that have been raised in objection to these programs, i am maybe one of the least likely to be labeled an alarmist. >> thank you, kate. i know you have more you want to get to, at any of the panelists can submit written comments to the board, so if you have more the like to submit, you are welcome to do that. judge robinson. >> thank you. i should probably first state that i am a member -- i am now and have been a member of the liberty and security committee
of the constitution project, which wrote a report in september of 2012 expressing ,ome alarm about these programs and i find that report and send by it, that that is not primarily what i want to talk about today. court foron the fisa a few years. i asked to be appointed to it to see what it was up to. i came away from it deeply impressed by the careful, scrupulous, even fast idiots work that the justice department people and the nsa and the fbi agents involved with it did. be fisa court was not a rubber -- stamp.ng the numbers that are quoted about how many warrants gets approved do not tell you how
many we -- how many were sent back for more work before they were approved. , and iow at first hand wish i could assure the american people, that the fisa process has integrity, and that the idea of targeting americans with surveillance is -- to the judges of the fisa court, which they call the fisc. but i have a couple of related points to make. process is exa parte, which means it is one- sided. and that is not a good thing. , fisa under the amended act, -- secondly, under the fisa amendments act, it submits surveillance. i do not consider it to be a judicial function. are learned in the law
and all that, that anybody who has been a judge will tell you that a judge needs to hear both sides of a case before deciding. it is quite common, in fact, it is the norm to read one side of the brief or hear one side's argument and think that sounds right, and so we read the other side. betweenis choosing adversaries. i read the other day that one of my former fisa court colleagues resisted the suggestion that the fisa approval process accommodated the executive or maybe the word was cooperated. not so, the judge replied, the judge said the process was adjudicating. i very respectfully take issue with that word adjudicating. hears parte fisa produccess only one side, and what the fisa
process does is not education, nots approval -- is education, it is approval. which brings me to my second point -- the faisal approval -- approval process works is fine when it deals with surveillance were spared improving search words is -- approving search warrants and others one at a time is familiar ground for judges. and not only that, but at some point a search warrant or wire typap order, if it leads to a prosecution, is usually reviewable by another court. but what happened after the revelations in late 2005 about nsa's said combining the fisa process was that congress passed a fisa amendments act of 2008, and introduced a new role for the fisc, which was to approve surveillance programs. that change, in my view, turned
the fisa court into something y,ke an administrative agencie which makes an approved rules for others to follow. job ofthat is not the judges. judges do not make policy. they review policy determinations for compliance for statutory law, but they do so in the context of adversary process. the great paradox of this intelligence surveillance process is the undeniable need for security. the chrissy, especially to protect what the national security community calls sources and methods. that is why the supreme court had to refuse to hear clapper versus amnesty international, the plaintiffs could not prove that their communications were likely to be monitored, so they had no standing.
that is a classic catch-22 of supreme court jurisprudence. i submit that this process needs an adversary. if it is not the af -- aclu or amnesty international, perhaps the pclob itself could have some of ans kind institutional adversary to challenge and take the other side of anything that is presented to the fisa court. thank you. >> thank you, judge. ken. >> the morning, everybody. i want to thank the board for inviting me here. remarkslike to focus my today on the authority of 702 -- >> can you fix your mic? >> i'm sorry. i would like to focus my remarks on the five mm its active in the 702 authority that was described earlier. recent disclosures regarding the -- somerogram
expressing surprise at collection of that type and scale is taking place. fisa mms acthe reveals that that internet collection appears to be exactly was contemplated when congress passed that statute in 2008. i would like to take a moment to remind ourselves about the faa, the fisa mms act, and the reason they came into being in the first placement. and i disseminate, congress 1978,d a process -- in congress created a process where -- had to be approved by congress. connor said to recognize that had to balance the need for surveillance against the governments need to freely conduct surveillance overseas. it sought to accomplish this objective by imposing the five the statutes, court approval requirement on, surveillance dreaded against forces within
the u.s., and leading the surveillance committee free to surveillance overseas. with the change in technologies since fisa was passed, that foreign-domestic distinction began to break down. the government found itself spending significant man-hour about fisa applications. -- requirement in 1978. at this problem got worse, particularly after 9/11, the government found itself increasingly unable to cover its cyrillic needs. congress took up this issue in the spring of 2007, and over the next 15 months or so, numerous spentment officials countless hours testifying in meeting with members and staff of the hill, and after thorough analysis, congress ultimately provided relief in the form of fisa mms act, which passed in
the summer of 2008. a newn 702 created process, and a process by which categories could be improved for surveillance. under this process, the attorney general and the dni provided the fisa court court annual certifications identifying the target had worries and certifying that all said tory requirements for surveillance have been met. targetednment procedures, which are the operational steps it takes to determine whether each individual surveillance target is outside the united states. limitl as procedures that the handling and dissemination of any information relating to u.s. persons. the government then submits the certifications as well as the targeting stages for review by the fisa courts, and and the fisa court confirms whether they -- whether all its steps have been taken. this process succeeds in bringing the operation of fisa back in mind with its original intent. it still provides surveillance
targeting of u.s. persons here or abroad or targeting any ,erson inside the united states must be conducted pursuant to a fisa court order. it allows the government to conduct surveillance of foreign target overseas without the need to secure individualized court approval cleared it up the wall at the same time giving me five the court an important role in assuring that this authority is noticed -- is used only under non-us persons located outside the u.s. in addition, the faa passed meaningful oversight over this authority. the authority procedures and oversight prescribed by the faa have been in place since 2008 you're just last year they were reauthorized. the intelligence community that both houses were -- he tells of his implementation, and that same was made available to all members. the faa was a carefully calibrated piece of legislation. it addressed urgent operational need while at the same time
maintaining the privacy protections that the recent -- the original fisa statute recorded. the recent disclosures about the prism program, we are now saying this in action. that's presently, we are saying exactly was contemplated when congress carefully considered and passed the faa, which is a program that focuses on the surveillance of foreign national security target, which is where the executive branch of its greatest latitude, that is conducted well within the bounds of the fourth amendment, that is carried out with the knowledge and engagement of all three of wrenches of government, and it is monitored with multiple levels of oversight. that is immaculate congress and the american people ask for in the legislative process that resulted in the passage of the faa. i appreciate the opportunity to address these issues here today, and i look forward to any questions that the board may ask. >> to what. we're not going to enter into the second phase of our program. that is each person on the toel gets two minutes respond to any of the comments or to make their own comments
upon what other panelists have said. so we will get that going. steve? >> thank you, judge wald. just real quick, responding to a few points that jameel made. otherd he thought no country conduct surveillance like the nsa. i don't think anybody here should leave today assuming that a mint is correct. 215 telephonee made a data collection, he described as a dragnet. i think of a dragnet as a collection of mass amounts of contents communications, not metadata. i think there is a vertical difference between -- a critical difference between the content and metadata. i think because addition recommended after he talks about the jones taste, which is the gps tracking case. that case involved tracking of
an individual, the government doggedly following and tracking a particular individual. -- until asus is his number is what is a database. in the targeting of the seven to order, it is only focus focus on non-us persons believed to be outside the u.s.. described these smith versus maryland case as simply a case involving a permanent device. the case is meant applied to the lower courts more broadly. i think it is more constitutional significant than the general collection of metadata. i want to talk just for a minute about some of the comment that kate and judge robertson made about secrecy and the rise of secret law, and also the role of the court. i think it is important to