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tv   Key Capitol Hill Hearings  CSPAN  April 1, 2016 6:06am-8:07am EDT

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>> when you look at the mission of these individual agencies, when we were thinking about intelligence reform and statute, it never really came to the point where you would say let's reduce these and combined these. somehow we would get a greater uplift from that. what is the challenge and that
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we i think that some progress on, there's more to be made, is how the community can act in a more coordinated and also use the technology in other ways to share across the capabilities across the community. does everyone need to duplicate the same capabilities, the same software to their own programs? do we need 17 or 16 programs across the community developing different systems, different software, different programs? each one of those elements will say, wait a second, you need to understand we have our specific mission. we can use what they were developing. you will always have those arguments and that's something where i think the dni office needs to chill leadership of why it was to do. it's hard to get behind. those arguments have merit or is it about somebody want their own flavor of ice cream that is the court of the mission. we can get uplift from taxpayer
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money we spend which is a large amount of money from looking to see what kind of commonality we can have across the community. >> i would interject. i think there's tremendous value in the millennials and those who have come on the scene in the last 10 or 15 years who think collaboration and what the intelligence community calls tipping and queuing. that is a tipoff from one agency in the collection to another one that allows her imagery to cover something that the national security agency has collected or human sources on the ground have collected in that there is a view that collaboration, particularly in, and they would be younger to anyone setting up. no, think about in their outside world think that that's a good thing inside. i think among the 17, that has improved from my perspective over the last decade. so let me say, what difference
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does intelligence make to the policymaker if, for example, you were advising a presidential candidate? what two or three improvements in capabilities for the intelligence community would you recommend that we currently don't have? >> okay. we talked over breakfast a bit of a apple, encryption and all it. i think the broad sweep of technology is going to make the content of communications more and more difficult to reach. and, frankly, it's indifferent to what it is we decide on this particular case. we may accelerate it or slow it but, frankly, the orchestra. content is what it harder and harder to retrieve. if you think of everything we collect is a big pyramid, it's a
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cartoonish sort of way but i've always said that base 60 is your bodily size. every morning you can tell how the organisms are doing. it is comprehensive enough that you get. the top 20 is human. this is industrial, boutique, general, specific. this is essential, this is elegant, all right? in between you the other disciplines, imagery, measurement, open source and so on. we have lived to a golden age of electronic surveillance. the last 15 years when all of us mistakenly decided to put things we to keep in a safe and decide to put them in our phone. and again i'm being a cartoonish but globally that's what happened. we have been able to harvest volumes of valuable intelligence to electronic surveillance. i think that golden age, it's
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not going to do is beginning to contract. if you ask me to advise the president, how and how do you compensate for what was such a rich vein of useful intelligence? i think you shift your emphasis to the other part of the pyramid that are going to take up the slack that's necessarily going to be created. it's not me giving up. i just think can' content will e hard to come by. but anyway, so how do you then shift your weight to what i think you can predict as inevitable evolution in what information is going to be available. >> you are not suggesting that's easy further up the payments because no, no. for god's sake, it was great doing it down to but it's no longer available so now we have to spend more, actually it will be harder but also will have to be different in how we try to gain it. that would be my macro view as
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to the broad arc that the community is going to follow. >> let me put a spin on this and go to executive order 12 triple three as amended in july 2000 a. does that framework which is nested below the intelligence reform terrorist prevention act give us what it takes to go into this future world of capabilities of the kind that might -- mike just described or do we need to update executive order one to triple three. toshiba know this order, he dialed united states intelligence activities from its the charter of the intelligence community in that order lays out many of the functions, duties and responsibilities of the intelligence community who is charged with performing the functions of the various intelligence disciplines. general hayden mention human intelligence.
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larger with cia in the lead. military intelligence and capabilities, defense intelligence agencies. so you find those in want to triple three. want to triple three also the civil liberties protections here so much about. in terms of bans on assassination, bans on electronic surveillance done domestically. that is not pursuant to statute. we can go on in opposite order a very fundamental order. updated in 2008 there are many, many, many afghans can we trace that back to 1981 to amended. very hard to do even in 2008. really a number of decisions going to the president. this is kind of a bit of an obscure order but it does lay out the funding of the foundation of the community. i think we can continue with 12333 the way it is now. i think the community and make
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that work with the way it stands right now. with a few exceptions, but they are important exceptions. in 2008 we talked about cybersecurity. and whether we're going to address responsibility for cybersecurity in 12333. the determination was that one is going to go into too hard to do jar. even with the agreement in a rare time of leaders. it was really a golden time in terms of having secretary gates in his background at the department of defense in understanding these issues and intelligence. general hayden at cia. mike mcconnell at dni. judge mukasey and his devotion to this as -- bob mueller at the fbi. even in those cases cyber is so fundamental to what so many agencies do that we had to put into too hard category.
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this administration has made progress in terms of trying to divide those responsibilities in terms of dhs, nsa, the role of fbi, cia and others. but it is still a question in my mind whether we have that right and whether we are getting the uplift across the community that we can't insider. that brings me back to your question about if i were advising somebody in terms of the next president, what improvements would we have specific of what questions should a person as. one of the questions i would ask the president or i would have the president ask his leaders and say, do we have the authority that we need right now, mr. or mrs. dni, mr. or mrs. secretary of defense, mr. or mrs. attorney general, to defend the nation's critical infrastructure in the case of a cyber attack? so there has now been endless warning in testimony that this is one of the top threats facing the country.
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every time you turn congressional hearings. but the president needs to ask the question do we have the proper authorities and organizations? organizations? i do not want to hear in 2020 of a commission to review the attack on the nation's critical infrastructure that these agencies didn't have the right authority, didn't have the right people. >> no one said anything. >> didn't have the right organization. so whoever that is i think that's a fundamental question. there's no political constituency out there that will get you any electoral college votes in terms of asking that question but i think those types of things you need to ask and hold people accountable to say, i do not want to hear from some commission two years from now that there were all these problems down in the communities that we didn't have the authorities and that no one brought us to the attention. i was elected by the people to protect them. if there are decisions we need to go to congress and address those issues, i'm willing to
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take that on what i am telling you all that i do not want to hear about a cyber attack on our critical infrastructure and your agencies and authorities that you needed that were not brought to my attention because political concerns or other concerns. as president let me take that on. that's my job. but let's not go through this whole commission issued again where all the sudden we're reading about things were over lawyer or there were myths about laws or fisa needed the amended. we have done that once. one free bite at the apple, but don't coming after an attack tell me all of a sudden about we had these problems can we need these authorities but we were told isolate on the staff not to bring it to your attention. that's one piece. the second improvement that i would talk about is the need to support the intelligence community. that doesn't mean blind support when they are wrong. when something goes wrong there needs to be accountability but
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we can't have a feeding frenzy, that goes unanswered a summit is correct -- incorrect. it's where i've seen a where i've seen a committee that is more attention in terms of complex and other issues and, frankly, in some cases overreaction. we read about 9/11 and the myths and the barnacles that grew up around very cautious activities. so i think the president needs to understand the fragility of the workforce and our intelligence sources and methods and when there are issues that it needs to be defended. if it's appropriate. and it's not just a one time defense. it's not just a one time speech in our culture. it is something that needs to happen over and over again and explain it to the american people. if it is all just one-sided, if it's all portrayed in the darkest corner of the room as general hayden says, then that does have an effect. it has an effect on political
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support and the ability get those authorities from congress you need to defend the country. when we talk about the fisa amendments act and issues that were with fisa and how outdated it was, that was a three-year process your that was endless hearings, endless amount of testimony from endless amounts of briefings. every single day it was really kind of three yards and a cloud of dust. it was not as it is portrayed sometimes as you should've come you explained why he was outdated and we got a statute. having lived to the 12 hours a day for three years, this is something that needs to be done over and over again. the community needs the support of the political leadership to get the authority. >> that's a great point. double down on what ben said. the role of the president and, number one, selecting the right leadership of the committee.
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this structure work, but it depends on the character of the dni, the relationship of the dni to the president and the relationship deny to director of the cia. that has to be the product of careful personal choices by the transition team. one would hope with the personal involvement of the president-elect. when it hits the fan he needs to jump out of there. i write in the book what happened after the "new york times" wrote about what we called -- i said when things like this happen, we have what we call the long pause. all right, he's the guy who told us to go do this come going to go out there and self-identify that he told us to do it, and he's going to identify. easy going to defend is? in this instance the story came out thursday night on the websites. friday was probably the way you would imagine the party to be in the white house. midday friday the president told his staff to throw away a saturday morning radio
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broadcast. he had already produced. he went on live saturday morning and did what we all would have hoped he did. and then within a few weeks he visited fort meade visibly. that's what you need from the commander-in-chief. >> i would interject, the team that is selected i would add one additional one because of such a dominant role that the defense department place. and that's the secretary of defense. so in the relationship of dni, director of cia and second defense, largely delicate or exclusively cruelly delicate to the undersecretary for intelligence. that personnel selection team when it comes to the dod peace, and so that's just added dimension. >> trying to do this 12333, gates, hayden, mcconnell and clapper. lifelong personal friends and it
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was still almost ended too hard to do box. >> in 18 months or thereabouts. >> i recall certain conversations. i won't name out people like secretary gates, but were either call some conversation where it was said when you were director of cia you supported this amendment and thought, we lookek at the memos and they were very strident about the need to reform this, and conversations like, what you said makes a difference these days. even with these incredible person knows and experience it was a hard, hard slog. >> moving to the third section of the question, why isn't intelligence needed, what difference does it make? i want to start with you, ben, on the whole question of how well does oversight work? you have touched on it but one of the criticisms leveled against the intelligence community is that there isn't in essence of an to use of liberty in these words, there is never enough oversight.
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enough oversight will bring it to a complete standstill. what's your view in terms of the level of oversight that we currently have against these challenges that we have, whether the crises we face around the world and the challenges of collection, or the intelligence community personnel, understanding what those rules are? >> first, unlike authorities that may expand or contract depending on the political wind, depending on the threats to the country other things, oversight truly is the one case that is a one-way ratchet. we always add oversight. a few examples we never take it away. second, he asked the question about is the intelligence community too big come is 17 elements the right size? no one ever asks, do we have the right size and. we oversight.
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no, we don't do that. we have a problem, we add another commission to another office com, another senate confd official, add more people to it. that, just over the questions about oversight because more is always better. third though, it is a very serious question in terms of affecting the mission, how cumbersome it can become. but also the importance of oversight done well can improve the mission. constructive oversight can do it. let's lay out the terrain briefly about what we are talking about when we talk about oversight. of kosher of congress with the senate intelligence committee, the house in taligent committee but it doesn't stop there. you've got your judicially committees, appropriations committees, the armed services committees. you have leadership offices. and i could spend the rest of
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the panel going down the rest of the congressional oversight mechanisms in terms of homeland security, government operations and others. we have added more oversight in terms of congressional bodies with the general government accountable office been given an nonpresidential ball by statute, something that the administration and the intelligence community have long talked about what the congress. that statute has now passed 90 of gao added into this. your privacy and civil liberties oversight board. you have intelligence oversight. u.s. senate confirmed secretary-general turkey of general councils. hot i warned you out yet or should i continue? so believe me, i could continue with another number of bodies. so we do need to ask the question and look, they should be subjected to the same questions we ask about others in the community. is this oversight contributing to the mission?
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is this got you oversight? that something that always concerned me. when we think about what happened with national security letters and the fbi into inspector general report that identified some deficiencies in the fbi's use and handling of the national security letter authorities. it would've been far better to have a compliance organization in terms of oversight reviewing it in real-time at identifying those issues than a report per the usual d.c. with operating comes out four years later at identifies these problems. on somebody who's always argued for real-time oversight as opposed to what i call got you oversight would you find it far less constructive. >> i doubled up on everything ben said. good oversight develop, credentialed oversight to actually help solve the problem i suggested earlier with regard to the broad legitimacy of the enterprise in the eyes of the
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mac and people. if oversight is seen to be sufficiently invasive and object of an approving, however we define that, that may go along way of moving the ball down the field in terms of getting the legitimacy we need without revealing everything we shouldn't have to review. i would suggest, just pivoting off of what ben said, narrow and intense is far better than broad. so i am quite happy with the oversight committees eating deeper into the business, more immediacy, more at the operational tempo of the enterprise rather than looking in the rearview mirror, rather than adding bodies to the left and the right and the right and the left. just create this bureaucracy that the operational community then has to feed in order to get on to do what is what they have to do. one brief example in response to mr. snowden and a special
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commission that was created to look at nsa collection. the president issued pdd 28. it has to do with extending what we used to think of as u.s. person protections in the collection of electronic surveillance, extending those protections to non-u.s. persons. i'm not even going to argue that marriage. i'm just telling you that bureaucratic overhang of that is incredibly significant. and so narrow, intense, legitimate. how do i get that out of the congress, i would ask the leadership and heard the president play an additional goal to put pressure on both the majority and the minority party. put your prose on this committee, put your center of the rotors on here. leave the ideologues over here for the judicial committee perhaps, sorry, judge. or some other committees.
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you need very pragmatic people inside these committees. and then finally this is hard stuff, so i don't understand the virtue of term limits are members of the oversight committee as a gift mastery of what it is you're telling them, they've got to go. just doesn't do what we need t have done. >> an unfortunate trend i think we've all observed is the politicization of intelligence with oversight. that has occurred over the last decade plus in terms of congress. if i look back over, before my retirement from government, a model of a well working oversight relationship was chairman rogers, mike rogers, not to be confused with admiral rogers at nsa, and dutch groupers berger as the ranking of on the house permanent select intelligence committee. while they politicize the issues
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and look at intelligence for its value and its value proposition to the nation. and that was welcome. now, mind you i'm not suggesting this oversight or deeper oversight as you put it but certainly where we were not seeing a mommy daddy fight every time in terms of it being politicized which again takes me to the one bonus question for you, mike. you have a new book, playing on the edge. i think this might be dust on the cleats, metaphors on the football field, but one of the controversial topics remains the enhanced interrogations that were used in the immediate aftermath in subsequent years after 9/11. you're the subject of significant criticism for how you characterize intelligence there. do you have any comments about
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that intelligence value versus everything we've been talking about this morning? >> so these are very edgy decisions. they were never taken lightly. they were not done out of thusiasm. they were done out of duty, sense of responsibility. we never did it because they deserved it as some people suggest we should do in the future. this was not about looking towards the past. it was looking towards the future. life-saving taligent. what it was we did was up to the edge as defined by the department of justice into to tell the of circumstances as we need them to be at that time. remember necessity, for proportionately, distinction. when i got to the agency i change some of the things because i different circumstances. this is not saying that was inappropriate for the circumstances. i had different circumstances. we had two supreme court decision and to statutes that changed the legal underpinning. we knew more about al-qaeda and have a better sense of threat from al-qaeda.
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i felt, i didn't do away with the program but i don't like i should make some adjustments. heading back to the proportionality, needs to govern our actions and we have to make these difficult choices. the people at the agency believe that the historical record justifies the program. the people at the agency believed we acquired information not otherwise available or not otherwise available in a timely manner. from doing what it was the agency did. it wasn't of the program when it started. george tenet will freely admit to the. it was done on the fly. i talked a bit about in the book about analysts face-to-face, 48 hours after they were told to leave langley. so there were missteps and misjudgments but those are were mostly early in the program. the longer it went the more regularized indiscipline it became.
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i don't know what more is to be said. again, we believe the historical record is as we described to be, senate democrats believe the historical record is as they describe it to be. frankly, i am just tired of the issue. the agency is not going to do this again. it's not going to not do it because they thought it was wrong or ineffective. they are not going to do it because they thought they have a social contract with their government, when the director conference as i want you to do this, the case officer gets to ask for question. you think this is a good idea? president? president authorized the attorney general said this is okay? congressman told? at that point he believes he has a social contract that the american republic has his back. not an administration.
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that social contract frankly was violated. and so multiple cia directors when asked is the agency of going to waterboarded again, and just respond absolutely not. and again not a judgment on what was done before, but a judgment on what happened afterwards. i famously said if some future president wants to waterboarded somebody, he better bring his own pocket because the agency won't do it. that is not necessarily a good thing. >> ben, oftentimes it said, and i think you made reference to it with secretary gates, you stand on an issue where you sit. is there any way to overcome that in building that stronger sense of community as we face of these incredible threats around the globe? none of which appeared to
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subside because the status quo anti-of the milk is coming to africa are not returning to a pre-arab spring. so why is it that the bureaucracies get in the way of this, you stand where you sit? >> you are asking if i can follow the iron laws of democracy? if i could i think i would be in a different position, but more seriously, look, you're going to have those iron laws of bureaucracy. you are going to have those issues. we have made a tremendous amount of progress. everyone who goes overseas to solve the integration of the intelligence community overseas always come back and all said the same thing no matter what your political views, no matter your views on these issues and how amazing it was to see the community sitting together in operation centers overseas and -- >> the agencies. >> the agencies together.
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the people who do, think of mapping and geography and things that are far more -- nsa with its signal intelligence, cia with human intelligence. d.i.a. with what it brings in terms of tactical of supporting the military. having all those people together because they were forced together, supporting the warfighter and other efforts. everyone came back and said, should, if we could replicate that in d.c. so now, why does d.c. seem almost impregnable to what is going on overseas? we tried to do things like joint duty, which is taken from, in terms of what the military has done with its joint duty across services and trying to do that in the community. it's a continual struggle to make what happens in kind of a foreign expeditionary sense including the fbi being over there and overseas about what is going to being domestically.
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and bringing that back in d.c. and penetrating what seems to be the walls that are put up what you come back to d.c. there's always more progress to be made. that is a place where the dni and the leadership of intelligence community needs to think about -- beyond themselv themselves, and continually work that problem. it will always have a bureaucratic inertia to slide back up i don't want to share my best people here i am responsible for my agency and ended to think about doing the best my agency as opposed to thinking in a community since. i think we've made a lot of progress but it requires continual attention all the time because all the forces are against that in some sense. that's a place where i think i was one of the reasons for standing up for the dni to make sure those issues don't slide back to where they were when we don't have a sense of community because what you saw overseas is
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something that has a lot of uplift still to be made in d.c. we talked about cyber. that's an area that cuts across the agency having that sharing, those capabilities and understanding across communities just absolutely critical. that can be done just in a weekly meeting or a monthly meeting. unique of the best people across the community fundamentally understand what's going on in other agencies to get the same kind of uplift we saw overseas here back domestically at the headquarters level. >> i would say we have come back to our critical a selection of that new team, should the president-elect in january of next year choose to replace any or all of the current leadership, how critical that will be both in building the trust and confidence but in addition as you've described, the ability of the team to get things done.
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such as security clearance reform. yes, one of those things actually hard to do, not very attracted by way of headlines but if you want in your nose we are still doing 150 page sf-86 is, just as one simple example in terms of your security clearance process. those things, and working together as a community. so i would like to take one question. we are almost out of time. i was just, firsthand up. please. >> i'm a soldier, no longer young. gentlemen, this has been a really enlightening morning. i'm a soldier, no longer young. my name is michael krauss. two wars, four continents, fight
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contingencies. my question really becomes the existential threat from islamic state and the potential threat of nations that commit little green men to cross borders. you spoke of intentions. you spoke of proportionality. are we using the intelligence mediums to secure borders well enough to prevent and enable decision-makers to have proportional reactions? general hayden, as a soldier, i defer to the air force component spin isn't absolutely actually question because it brings all these questions together. >> in essence i think you have created an interesting is not a
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dilemma but a dynamic, that the more aggressive about my intelligence to be, the earlier i would probably identify issues or actions that i must take, thereby allowing me to do things almost certainly with a lighter touch, with fewer resources and with more impact than would be the case if i were forced to do it later. green men, islamic state, you know, isis is very hard now. it was hard about a year ago but probably not as hard as it is today. i can run at clock back to 2011 and decisions made with regard to american residual forces in iraq and so on. as time goes by you lose leverage. you don't get a pound of output for every pound of input. in fact, it works against you over time. i guess what i'm trying to say
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is if you disarm yourself with regard to intelligence collection, if you are too cautious with intelligence collection you may lock yourself into policy choices that are even worse than they would otherwise be. what ben suggests if all the tools you have available, that the one that you might want to think about being more rather than less aggressive if i do go about collecting intelligence which has not been the trend line in the last couple of yea years. >> excellent question. it really does wrap this up. i think the community has said that islamic state was unmet, -- was a myth. they didn't see the rise of the islamiislamic state and the takf the territory. that's not a criticism of the community. that goes back to what general hayden said, which is usually very hard problems in setting the boundaries, but just because i see something is a one in 10 and that want that again comes to pass, don't say that we
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didn't want about it. i think the islamic state was a myth and it was not a myth because of somebody doing something wrong. it was very difficult to understand the dynamics when we're dealing with human nature, the intelligence community, as much as the collection into your making predictions about the future. is the thoughts aren't going to stay together? we could have intelligence about their military capability. we get lots of intelligence about the morale and their state and to plan and everything but when the bullets started firing, is there going to be something that causes it to fall apart or will they stay cohesive infight? what is prudent going to do with little green men and others -- putin? these are difficult problems or the community to stay on top of. we are going to continually be challenged. now the problems have become
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more difficult as general hayden said. now that causes us to have to spend more on intelligence and be more aggressive with intelligence. i think in terms of how we use of the intelligence community on the threads you identified to wrap up some of the pieces that we talked about, this is an oversimplification but as somebody told me from the united kingdom, there are really two fundamental ways when you talk about intelligence and making cases and those kinds of things, and those resources and wires. so sources being human intelligence. that can be from spies and others but it also is from people that you capture and gather intelligence from them. and wires, we are talking about signals intelligence. so the less capability were going have regarding sources and the less capability were going to have in terms of wires, the less capability we are going to have them talk about protecting borders, the islamic state,
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nation-states like russia creating stability in places like the ukraine and elsewhere. >> as someone who handled the intelligence transition in 2008 and 2009, went from president bush to president obama, a very bad moment in january of 2017 on the 21st of january would be something like this, the president-elect after november has been receiving the president's daily brief, and then he sits in the chair or she sits in the chair as president and says okay, now tell me the secrets. that is a bad time for the deny and the director of nsa and those as they sit around the chief executive of this nation. that has always been my concern, is that expectation of what intelligence can deliver in order to offer up when we started this conversation this morning on decision advantage. that is, having information
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knowledge that the enemy does not know that you have in order to at least consider other options. that chief executive of our nation's has, now tell me the secrets. because right now this doesn't quite cut what i thought you actually would provide me. that will be a bad meeting. so it goes to the heart of your question. are you collecting and analyzing and then delivering that which allows that decision advantage, along with the counterintelligence weight to that information. what you really know and what his assessment of what you know. >> in the book a whole chapter in a nuclear reactor in eastern syrian desert. it was destroyed in an air strike in 2007. we got there and discovered, present it to the present with the help of our allies in
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april 2007. this thing was damn near done. they have a cooling pond in the euphrates river. they were changing the cooling water. this for all practical purposes from what we could see any day now they could've been inserting uranium into the facility. a bit of intelligence, we found it and we were right. it was indeed a nuclear reactor. we didn't give the administration much decision-making at all. there are very few good choices and you've got this new complete nuclear reactor in eastern syrian desert. so the intelligence process constrained the policy choices the president might have had incredible to tell them six, 12 or 18 months earlier. >> well, time is of the actual two minutes over. and give her much for being a wonderful audience and i hope as you said, this has been a valuable discussion on the why
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of intelligence, how it's conducted, and what is it that we get from it by way of informing sound decision-making. so please thank our guests. [applause] >> they are out of government. they cannot accept it. -- they can now accept it. [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] >> all right, folks. as we get started again, running on time. it's a distinct pleasure to introduce the second panel. and if you notice the way the program is structured, we wanted to start with the big question,
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why we collect intelligence, and chilled out a little further into counterterrorism and collection authorities, and then the rule of law which was touched on in the first panel. i can't think of three better men who have lived in this and work in this area than the three easy sitting before you. my close friend and colleague, paul rosenzweig, is going to guide the discussion. paul is a distinguished visiting fellow at heritage. he also served as a deputy assistant secretary for homeland security and a number of other distinguished posts throughout his career. he now owns his own consulting firm called redbridge consulting which does valuable work in the private sector. i will turn it over to pull. >> thanks a lot. appreciate the invite you to moderate this panel. but he did question us against -- caution us against much of an introduction i would be remiss if i didn't mention the two
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panels, matt olsen to my far left is a graduate of the sadly not going to the final four, the university of virginia and harvard law school. he's a former director of the national counterterrorism center, a position to which is appointed by president obama. he is cofounder and president of this is develop a strategy, as i am net, a firm he cofounded with former nsa director keith alexander. to my immediate left is michael mukasey to serve as a federal judge in the southern district of new york from 1987-2006 after their brief stint in private practice he returned to serve his country as the attorney general under president bush. he's now of counsel of a new york law firm. the title of this panel is counterterrorism collection authorities and the rule of law, which when he began to think about it starts with something of a conundrum or a conflict.
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since intelligence and espionage is at its core fundamentally a lawless activity when we send signals intelligence people to penetrate china or human intelligence people to penetrate iran, they are by definition almost violating laws of those countries. likewise, when the russians since when is almost certainly a violation of american domestic law. yet the hallmark of american democracy, one of the hallmarks, is our commitment to the rule of law. the idea that we are a government of laws, not of men, and that our officials act within the bounds of law. the american experience with attention has been of the ring intensity. it goes back as far, my favorite first story is henry clay who famously said as congressman that what the president did with his secret and intelligence
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committee was actually no interest to congress at all and should not be. fast-forward of course to the 1970s and a significant oversight that was put in place by congress in the wake of the church and pike commissions, fast forward again to 9/11 and the perception of heightened reality pashtun like out of requirements as having constrained effective collection and use and analysis of intelligence. we have had this discussion for over 250 years, and i think it's best captured by the time of general hayden's book that we just heard about, playing to the edge, which reflects his statement that in the wake of 9/11 we moved to the edge of what we perceived to be lawful. that suggests to congress that is up until that date, we were playing back from the edge, playing with a great deal more caution perhaps because of the requirements of legality and the perception of the requirements
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of legality. the requirements of lawful conduct stand on ground of accountability and, more importantly, transparency that are sometimes in great tension with the requisite secrecy that is basic to this -- effectiveness of intelligence collection. so in this panel we want to talk about some of the contemporary issues in law that are in our immediate past and in our not-too-distant future as we look at how law can modify and regulate intelligence collection. and more fundamentally whether or not it's feasible to have an intelligence community that acts within the bounds of law and democracy and still be effective in some way. with that brief introduction about to turn to first, to one of the most notable programs
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that is in the news today and will be in the news in the next few months and years. it is known as a section 702 internet surveillance program after the section of law in which it is grounded his decision to authorize surveillance of internet traffic for foreign intelligence purposes broadly speaking. that law is up for renewal next year. some in congress see the need for an amendment. others think the program is working fine as this. so let me start with you, general mukasey, and then matthew. to see any legal weaknesses in the statutory or constitutional underpinnings of section 702 and the program at all? >> i don't see any constitutional weaknesses in the sense that we have to remember the constitution is not a treaty with the world. the constitution protects united states persons, who are u.s.
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citizens whether here or abroad and to protect anybody u.s. person or not, if they are here. it doesn't protect everybody in the world. as a result it is perfectly constitutional to authorize our intelligence agencies to go around the world to collect what they need and what they can which a censure is what section 702 does. that said, we just heard in the last panel about a presidential directive that confers on people overseas, american citizens or not, the same protections that americans have. and candidly that gives me some flaws. to the extent that ordered him backs out intelligence collection, i assume it does otherwise it would've been issued. i wonder about whether that constraint gives us the flexibility we need.
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>> if i could go back to your opening comment, what you said about nsa or the general counsel. i teach the law school class on national study law and i made exactly the same point you made about the role of espionage, and again the head lawyer in agency like nsa carries with it certain challenges. nsa's job is to go around the world and largely break the laws to collect intelligence. they key is they don't break the law of the united states. your point being, in your opening comment, we live under rules of law in this country, in my experience at nsa was these are taken extraordinarily seriously within the men who worked at nsa. at the same time i would say that going to general hayden's metaphor, he and i have had the opportunity to talk about his metaphor which i think is exactly right from the point of
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view of an operator. you need to be right up on the line. you need to chalk on the cleats. that's expectation the american people place on our leaders in terms of protecting the country. but the point from a legal perspective is that makes your job pretty hard as a lawyer. even though that's the right approach, this metaphor to take it further of chalk on the cleats, that any certainly from a legal perspective supposes that line is readily discernible, relatively straight and static. none of those things are true. the line of legality from the point of view of having to buy someone like to general hayden when he was director of nsa or director of cia, that line is sometimes not clear. the legal line is sometimes not obvious as a lawyer trying to discern the. it's also not a straight line. it moves in zigzag's really i
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think, and its dynamic. it's subject to interpretation within the second branch, often from congress and even from the judicial branch. just to take the little opening comment, the complexity that this discussion today right now on the rule of law and on and intelligence capabilities presents real complexities for the lawyer operating in this space. which is nothing to say so that you i think is really extraordinary statute in reconciling the competing interests, and it really is the consequence of years of experience going from the church committee devise a to 9/11 to changes in technology -- fisa -- judicial decisions, to separate efforts by congress to come up with 702 and then finally somebody which represents a delicate and elegant balancing of interests at stake.
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from my perspective it does sound, to go back to your question, it does sound constitution and statutorily. if you what we can talk further, i think he insights about the operational aspects. >> let's come to that in just a second. i won't to ask, your discussion about the uncertainty of line actually brought a slight change. what do you both think, you both served in high legal advisory capacities within the administration. what is the role of a lawyer? is it to tell your operator how to get as close to the light as he thinks he needs, a visit to counsel caution and to tell them to get this close and no closer because there's this uncertainty and doubt you're going to make sure you are on the good side of the line? in the first amendment, we have this doctrine about the same far back from the line because we
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don't want to go too far. as counsel to people in the intelligence collection community, how did you perceive your role and how would you approach that problem, just generically without reference to seven oh t702 speak in general t was described with the meets and bounds were. and it was up to the policy makers and the operators to determine where within those lines they could function it occasionally they would come back and say look, we want to do x, y or z, legal or illegal. at that point yes, it is about line drawing. but i should tell you that as time went just pointed out, some of those lines are not bright. for example, 702 permits, doesn't permit it, it recognizes
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there will be incidental collection of information about u.s. persons overseas, when you're setting a wide net, casting a wide net you are possibly going to bring in some information about u.s. persons. that is not permitted to be your goal. it depends on the good faith of the people who are using 702 and the people who are using, overseeing the people who are using 702. that is, you gather information on the u.s. person, it has to be incidental to what it is you're doing. you can't conduct an investigation for the purpose of gathering quote-unquote incidental information about the u.s. person that you're really interested in. that's not what the statute contemplates and that's going to get you in deep trouble. jack goldsmith and an excellent book called a kerry presidency, back in 2007 or 2006 i think, described what he called cycles of aggression in the
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intelligence community. that is what we've been living with over the last several decades where the intelligence community goes too far. it's criticized, is you in. people are disciplined. they then become timid and then we have hearings about how come you didn't connect the dots. remember the 9/11 hearings were all about connecting the dots your now we are having a debate about whether you're permitted to gather dots or to be able to collect, connect at a later date. so that cycles continue which is regrettable. >> i completely agree with the judge mukasey on this point in terms of the role of the lawyer and the importance of line drawn with the difficulty in doing so, as well as the challenge and danger of the pendulum swinging
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in what you see, how that impacts particularly voters, not just operators but lawyers and the advice they give them some of the danger inherent in having lawyers who become too risk-averse. it's often easy to say no, it's often safer to say no then to say yes. when i was advised lawyers at nsa and that justice as well on this question, i think they're sort of, you can have multiple roles as a vote in the government. in some cases you are simply advising on what the line is, where the light is. and what the legal rules are. i always thought it was important to be explicit that you are now talking with the legal rules before you perhaps are asking to get a judgment about the policy. that's the legal rule. to your question, should we stay back from the line to avoid the danger of potential going over a. now you in the policy realm, giving advice to someone who is
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accountable for making a decision to you as it were typically are not on the policy judgment. you can give advice on the. here's my thoughts on that course of action but you should be explicit that's now a policy judgment so that the decision-maker is not confused you think that what you are saying, that option is off limits because it's illegal. i just think making a clear distinction about whether legal lunch hour and we're policy advice is usually a board. >> let me press on that just dia bit because one of the things you said earlier that struck me as the line is often indefinite. the choice of how you express that line to your client is sometimes not a policy choice but quasi-risky choice that you make. so do you give your client both lines, this is the maximum, the minimum line? >> i think that's right. you might say at an abstract
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level, this is clearly over the line. these range of options that are close, you would express i think in terms of risk, there is some risk. the risk could be a corporate look at it differently. judge mukasey's role as chief judge in the southern district of new york could look at it differently. deputy risk that congress could look it differently. the american people could look at differently, so there is risk. ..
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when at the justice department it was felt that the sharing of intelligence information with criminal investigators was something that the foreign intel against statute was barred, which the intelligence gathers could not notify criminal investigators what they had found. it turned out in subsequent investigation that wall was a figment of their imagination. we may have paid a price on that two of the hijackers sought by criminal folks came into the united states. the intelligence knew that. they couldn't communicate with the criminal folks. the criminal folks couldn't communicate with them. as a result the fellow at the controls of the airplane that hit the pentagon was not detected.
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>> let's circle back to 702, you want to give us a operational context for the legal questions we to ask next. >> i think it is important about the legal issues of 702 to consider the operational effectiveness of it ply last job at the national counterterrorism center, there was no more single authority than the u.s. counterterrorism efforts than section 702. it was, it provide ad significant proportion of the intelligence reporting that we receive on counterterrorism tatar gets, networks, plans -- targets, plans, locations. day did not go by a intelligence report i was reading didn't have some part of it, contribution was from section 702. it was to the point where analysts at nctc knew this came
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from 702 collection. this was statute that was few years old. they would say this came from 702. just don't take my word for it. i went back and looked at private and civil liberties report over 702 which is a definitive account, 700 pages of review where they had all the information, that 702 directly enabled thwart thwarting of specific terrorist attacks in the united states. targets of attacks, means contemplated to carry out attacks and identities and locations of participants. they came down quite strongly on the side, recognized value is difficult to overstate. just lastly, sir, if i could say, many of are aware of zazi example, the new york city subway bomb attempted plot, that is largely attributable, that was foiled largely attributable to 702.
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>> i think you also need to step back from the valuing 702 simply for its ability to stop particular plots at particular times. we're talking about here at intelligence gathering. if you're talking about stopping a plot where somebody is chambering around, no you will not find a whole lot of plots stopped by principle programs. that is the not way intelligence is used of the it is iced as part of a whole. used along with human intelligence and open source material you heard about from general hayden. when you put that all together that allows you to prevent thanks from getting to point where somebody is chambering around. >> so you mentioned, both of you mentioned earlier the one aspect of the section 702 program that has generated at least some congressional concern and pushback and certainly a fair amount of concern in the ngo community is this idea that
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information can be collaterally collected during the course of a foreign intelligence investigation about an american citizen or u.s. person more formally and legally. and that even though the collection of that information would not have been express or authorized purpose of it, that information, once collected, is according to critics now useable for foreign intelligence purposes and they are concerned possibly even shareable for law enforcement for domestic, non-intelligence purposes. that to my mind, is going to be ground, if any, of the major portions of the section 702 program when it comes up for reauthorization. so, a couple questions flow from that. your perception of the frequency
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with which that happens? your perception of the legality of it. your perception about whether or not there are ways moved filing the program to avoid or minimize a problem and -- modifying the program. whether critics are saying this is category mistake allows collection attaching to american citizens without the full panoply of fourth amendment warrant and independent judicial officer protection. that is a big question but it is kind of a open. >> the key operative word here is incidental and consider what happens to intelligence that's gathered incidental to a intelligence that is being sought about foreign persons. you gather intelligence about united states person. are you then to discard it? what if it tells you that the united states person is about to coit


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