tv Politics and Public Policy Today CSPAN April 22, 2016 5:00pm-7:01pm EDT
is a mechanical switch, and put the power back on. so my point -- and i would love to continue working on this and getting some actual data to support that -- is it's very hard to transform from a cyberattack into long-term damage that would be measured in weeks or months because you have to hurt the equipment to do that. >> okay. and that's really my focus is not turning a switch off here or there or, you know, tripping a breaker or, you know, making a jack go out. that's minor. i guess the type of cyberattacks that we're seeing and hearing about in classified settings, not directly related to the electric utility business, are very sophisticated. and so being able to come in, and so i assume, you know, going into a generated capacity. so let's say you've got a generator, and, you know, there's all kinds of controls and switches to make sure that you don't run into problems with
the electrons. let's put it that way. so all of a sudden somebody coming in nefarious in not just turning a switch off, can scramble it in such a way that would create unbelievable damage, certainly from a standpoint of generated capacity, i mean i don't want to talk about it in an open forum like this. but i guess my concern, are you not having those kinds of conversations which are more than just turning the power switch off as happened in the ukraine, but really causing long-term damage either to generation capacity or transmission capacity? >> yes, congressman. i have the privilege of going to very similar highly classified briefings as well. i also have 35 years of experience working in substations with equipment, and
i understand the threats of black energy or aurora or those things. it is very difficult to transform an action. the predominant behavior we're seeing today is surveillance time behavior. but to transform that into an action that destroys a piece of equipment is very complex. >> that's comforting to know. that's real comforting because what i'm going to do is i'll follow up with both you and mr. spence as it relates to this because, you know, again, it's one of the number-one questions that i get is just a real concern. you know, it's about hitting the grid, and most people don't understand the interconnectivity between utilities. so a lot of that gets blown way out of proportion. but then at the same time, your confidence level if there were a cyberattack on an investor-owned utility, you know, somewhere in the midwest, the damage they
could cause in your opinion would be minimal? >> the damage on the -- >> physical damage? >> and information systems, that would be their business risk on the grid is very difficult. it's very unlikely to put a grid out for one to two weeks. >> so what you're saying is mass outages for multiple weeks or da days, in your opinion, is going to be a weather-related event? >> or the other thing is a physical attack which is shooting and explosive devices at the station are the two things i think can get into that one to two-week and beyond. >> but those are a lot easier to anticipate and plan for. >> it's very complicated to do 20 sites at once with a physical attack with the current law enforcement we have. so i think that risk is mitigated as well, but it's the one i worry about the most is a physical attack. >> well, that's very helpful. i'll follow up with all of you and from an rea standpoint, i
just want to say thank you as a member of my local rea, i have a great affinity for my reas. >> thank you very much. >> i yield back. >> i just have one more question, mr. spence. my colleague from pennsylvania highlighted that too many co-power plants have closed. are you concerned that having fewer generation facilities online makes the grid as a whole more vulnerable? >> i'm not -- in fact, mr. cauley and his team are also responsible as part of their duties to evaluate with very detailed modeling region by region the impact of retirements of any sort on the grid of major power stations. so they've evaluated this multiple times, in fact, and have found that we continue to maintain an adequate reserve of capacity should we see more retirements than actually
forecast. so even with the forecasted retirements, which are many, particularly on the coal side, we still have adequate capacity to meet over projected needs for power. >> thank you. >> i look forward to working with each and every one of you and welcome your input as we move forward on this initiative. i think you all for your testimony. your comments have been helpful to today's discussion. if there are no further questions, i would ask unanimous consent that the record of today's hearing remain open until such time as our witnesses have provided answers to any questions that may be submitted to them in writing. and unanimous consent that the record remain open for 15 days for any additional comments and information submitted by members or witnesses to be included in the record of today's hearings without objection, so ordered. i'd like to thank our wits again for their testimony. if there are no further questions to add, the subcommittee stands adjourned.
birth certificate matter to rest than the donald. and that's because he can finally get back to focusing on the issues that matter. like did we fake the moon landing? what really happened in roswell? and where are biggie and tupac? all kidding aside, obviously we all know about your credentials and breadth of experience. for example, no, seriously, just recently in an episode of "celebrity apprentice," at the steakhouse, the men's cooking team did not impress the judges from omaha steaks.
and there was a lot of blame to go around, but you, mr. trump, recognized that the real problem was a lack of leadership . so ultimately you didn't blame little john or meatloaf. you fired gary busey. these are the kind of decisions that would keep me up at night. >> c-span's look at president obama a past speeches from the white house koerts dinner is saturday night starting at 10:00 eastern. the heritage foundation recently hosted a discussion on intelligence gathering, counterterrorism, and cybersecurity. national security officials from the bush and obama administrations spoke at the gathering. this is about three hours. good morning. welcome to the heritage foundati foundation in our douglas and sarah anderson auditorium.
we welcome those who join us on our website on all of these occasions. we'll ask our guests here in-house to be so kind that our mobile devices have been silenced or turned off. as we prepare to begin, it is always appreciated as a courtesy. of course we will host the program on the heritage home page following today's events for everyone's future reference. our internet and other viewers outside the auditorium are welcome to send their questions or comments at any time. simply e-mailing email@example.com. opening our program and holding this session today is charles stimson, cully stimson is our manager for national security law program and a senior legal fellow in our katherine and shelby column davis institute for national security and foreign policy. he is a nationally recognized expert in national security, homeland security, and crime control. focuses on the policy issues of military detention and commissions, intelligence, criminal law, immigration, and
the war on drugs. please join me in welcoming cully stimson. cully. [ applause ] >> thank you very much, john, and good morning, everybody. i want to welcome you to the heritage foundation for what we expect to be a fantastic day. david shedd and i were walking back, i think, from the hill one day several months ago and we thought, you know, we really need to do an all-day program explaining the positive case for the role of intelligence. we've been through the snowden episode. we had the reforms to section 215. next year, we'll have hopefully the reauthorization of section 702, the privacy and civil lichts oversight boards are issued their reports on sections 215 and 702. they gave their assessment report recently. we expect they'll be issuing
their executive order 12333 report at some point this year or next. and we thought that given the turnover in congress and the number of staff who come in and out of the hill, it would be very helpful to put the nation's top minds in front of you and the hill to explain the role of intelligence. so i'm particularly pleased and honored to welcome all the guests today, and you know who they are. we're not going to spend a lot of time -- in fact, any time introducing them. but i will take the privilege of introducing my colleague, david shedd, who is a visiting distinguished fellow here at heritage. he served as the dia's acting direct oert since 2014 until he recently came to heritage. he served as the deputy director for dia for four years, and he had other roles in the central intelligence agency, the dni, and the national security council. so i turn the program over to my
colleague, david shedd. >> thank you, cully. thank you very much. it is indeed a privilege. and as cully said, the opportunity to talk about the value of intelligence is why we're here today. and be thinking about questions that you may have after i had exercised the prerogative after introducing our two guests in asking them their questions, to what is on your mind? and i think that is important to address. well, immediately to my left, he really needs no introduction, general mike hayden is someone who is a stalwart for about 120 years in the intelligence community. not quite that long, but i think i've known you about that long. and as former director of nsa and i think the longest serving director -- >> at that time. >> at that time.
and then i think your successor beat you out by a year or so. and then as the principal deputy of the newly stood up in 2005 director of national intelligence, bringing that breadth of experience from the intelligence community to that new office that was created under the intelligence reform and terrorism prevention act of 2004. went on after about one year there to head up the cia, and i could think of no one more qualified to make that transition from nsa, oni, and then to cia. and in his spare time since leaving cia in early 2009, he has dedicated himself to speaking and writing and is one of, as i said, one of the great stalwarts of intelligence that
we have. and it's a real privilege to have mike to my immediate left. ben powell once removed there is someone -- and you know that you have a lawyer at the other end when you write off his bio, it's four pages long. very distinguished lawyer with wilmer hale now, but goes back to our life together in the national security council staff in the mid-2000s, early to mid-2000s, was very instrumental in terms of his role in the irpta. as my principal lawyer as i sat down the corridor from him at the national security council staff. anything that came out wrong in irpta, blame him. i tried to get it right. no good deed goes unpunished. he went on to become general
counsel at the dni as the first general counsel under mike hayden and my self as chief of stat there at the time. then the no good deed goes unpunished, was very instrumental in shaping the amendments, the executive order 12333 that if you know your history, goes back to 1981 but was updated then and signed by george w. bush as president in july of 2008. as a colleague, there is a commonality between the two of them, and they're both air force in terms of their backgrounds. >> that's right. >> so it's absolutely a delight to have them here today. but as cully admonished us to do, we'll keep that part of introductions short and get right into the questions that i have for you today. and the way i've structured the questions and then the outline of what i'm going to cover, i'm going to start with the why is
intelligence needed by way of the questions that i ask. then i will get into what impact, so that why to the what impact does intelligence have on decision-makers. and then how well does oversight actually work, which is one of the reasons we're here today in terms of, as we see into the future, the hope for reauthorization on 702. and then i have a couple bonus questions that i just want to throw their way. so starting, mike, there are a lot of cliches that are thrown out there in terms of intelligence. current and former professionals in the intelligence business use cliches such as, in describing why intelligence is needed for the nation, and such things -- and you've probably heard this -- intelligence is our first line of defense. or intelligence creates decision
advantage. well, we throw them around as professionals, believing everyone understands what we're talking about. but mike and then ben, give us your sense of, in fact, what is the value of intelligence? as our children might say, or in my case, grandchildren, and your children, ben -- so what difference does it make? so over to you. >> okay. i guess i would begin with something like contributing to understanding. now, part of that might be prediction, but i don't mean to oversell that. what's yogi berra's line? prediction is very hard, particularly about the future. and i don't think -- i don't think the final grade on an intelligence enterprise is simply based on predicting future events. i'm very fond of saying, you know, if i go into the president and say, mr. president, that thing there, that has about a one in ten chance of happening.
and if it happens, it doesn't mean i was wrong, right? i mean it's that kind of soft science. but understanding something different, all right? understanding is something you can deliver. in general what i've taken to saying about government, david, is that intelligence creates the left and the right-hand boundaries of a mature conversation with regard to a policy decision. it's rarely a syllogism where you go in there and say, mr. president, one, two, three, four, whereas, whereas, whereas, and the president says, well, mike, therefore. no, left and right-hand boundaries of legitimate policy discussion. that should not appear to be a low bar to you. i'm not trying to say this is easier than you thought it was or i'm claiming don't hold us to a high standard. i actually think that's a particularly high standard because it requires the
intelligence officer to really have a deep understanding of what it is he or she is laying out to the policymaker. very briefly, historically the stuff that comprised understanding had a high percentage, a high quotient of secrets that had to be stolen. and one of the major changes in intelligence that i know we're going to get to, david, is that that's still important, and there are still secrets that have to be stolen. but in terms of the totality of information to create understanding, in today's world, a lot more of that is generally available if we but know how to harvest it. put another way, if the intelligence guy thinks that he gets to talk first in the meeting because he's the teller of secrets, okay, i actually think his role is going to diminish a bit. if he understands that he is
the -- in general is the storyteller, the one again that creates the context of the left and right-hand boundary and is willing to embrace all sources of information, including that which remains secret, then i think he gets to talk first for a long time. again, setting the broad context for the tough choices that follow. david, there's a lot more i can say about that, but that's enough to start. >> sure. ben? >> fundamentally the free world still largely depends on the u.s. intelligence enterprise for warning, for understanding intentions, for understanding capabilities of adversaries. we still largely live with many regimes who are non-transparent, opaque at best. and as general hayden says, intelligence is absolutely critical to setting those boundaries of the policy
discussion. while there is -- and i think we're going to get into this -- huge sources of information that are available out there in the open, there still remains the fact that many regimes and addver sad addver sar is and others around the world fundamentally operate in opaque and non-transparent ways and there's a reason why they have their secrets. and i anumber of those secrets have to do with wonting to do harm to the united states and their allies. and it's absolutely critical that the country learns those secrets. >> i would simply add in response to my own question is that -- and i want to pick up on general hayden's point about knowledge. it really is the acquisition and then the transfer of knowledge to everything that he and ben described when it comes to the value proposition associated with intelligen. and i'm going to put a plug in for the latter part of my career, which was to support the war fighter in addition to the
policymaker. so the same decision tree that mike described for the president in what you're bringing forward or in that situation room where you're talking about a policy lead decision that intelligence is going to contribute to making that decision applies to the four-star commanders at nine combatant commands and two subunified commands for 11 four-stars that are around the globe along with the war fighter that supports them, and increasingly in the area of counterterrorism to the law enforcement community as well in terms of what you bring to them. so really it is about this left and right boundary of knowledge around that. so that actually brings me into my second question, and certainly you can elaborate on the first one as i segue into the question of intelligence collection and intelligence analysis in an open society. and, mike, you mentioned, of
course, that more and more of what is out there, if we know how to harvest that information, is in open source as we call it. it's readily available, "readily" being in quotes because there's of course challenges to acquiring that. so how do you reconcile still stealing secrets on the one hand, yet this growing amount of open-source data that can very easily contribute to warnings as ben described? if you collect all the social media, you may get very good warning information. so describe a little bit this tension between an open society and intelligence in stealing secrets. >> that's a softball. okay. so i mean if i create a circle out here of all the stuff you would like to know or stuff that's available to know, i've already posited that the slice that is truly, truly secret is probably smaller than it used to be because so much more is
available publicly. i would also posit that that slice that is truly secret is even more secret than it used to be. it is harder to retrieve. and as a product of the same -- the same global dynamics that create more information here, the same technology is creating that irreducible slice of secrets to be stolen. it's simply making it harder to steal. so one of the cultural problems we will have as an intelligence organization -- organizations is how do we remain personal yabl enough to the broader society while maintaining narrowly crafted trade craft that really, really have to be secret in order to go after that irreducible amount that has to be stolen against very, very talented adversaries? those are cultural lines that are running across one another. so that's one way of looking at if. a second way of looking at it is
how i treat my class at george mason across the river. i begin every semester with classes in intelligence and policy. and i actually again with play tow's parable, the cave, which is not inappropriate for our discussion. can you know truth? the fire, the sounds, the shadows and all that. can you know truth? okay. yes, we can know truth, or we should pursue truth. then i quickly ratchet discussion down, so is the secret pursuit of truth compatible with a democracy, which, again, relies on open processes for its legitimacy? they bat that around and for every semester for seven years in a row, they come up with yes. the secret pursuit of truth, espionage is indeed compatible with a democracy. i think it has something to do with my being the former director of cia and their being totally dependent on me for their final grade. then i double down. i say, okay, i think you're
right. you got that one right. let me give you another one. it's not just compatible with a democracy. it is essential to a democracy. and as ben pointed out in a still very dangerous world, in a world in which the immediate threat is actually more personal and more likely to touch us than it did 20 and 30 years ago. in any event, my point is it's not just compatible with our democracy. it's essential to our democracy. and the line i use is frightened people don't make good democrats or republicans. i mean small d, small r in both cases. i have seen what we do when we're frightened, all right? so one of the kind of moral compulsions i felt we operated under when we were together in government is that we've got to do what we do well, not just to protect american security, but
there would be serious damage to american liberty were we to fail, were we to fail in our task. all that said, i was fond of saying while i was director of nsa, that the only thing i needed to be to be successful was to be secretive and powerful. inside a broader political culture that distrusts only two things. sec rescy and power. so there will be this constant tension between what it is we do and the essence of it frankly in a broader society. i asked carly fiorina, who was head of my civilian advisory board at cia. '07, maybe early '08. it was way pre-snowden. i said, carly, will america be able to conduct espionage in the future inside a broader political culture that every day demands more transparency and more public accountability in every aspect of national life.
carly talked to some folks around town, came back, sitting in the office across from the suite on the seventh deck at langley. walked across, okay. carly, will america be able to conduct espionage with more transparency and more accountability. she looked me in the eye and said, close call. that was the answer. that's what they gave me. so this is a no-fooling issue for the republic. how much of what it is we do must we make available to the general population in order to get their sanction for what it is we do without making what it is we do not worth doing in the first place? and we are now involved in that debate, all right? and the former answer was to default to representative
government, the oversight committees, advice of court, the president, and frankly after snowden and the 215 program, a lot of americans and not all of them wearing tin foil on their heads, a lot of kind of middle of the road americans said that, okay, the president knew -- the oversight committees knew and are actually pretty enthusiastic. the court was doing oversight too. but you know what? i'm not so sure that any longer constitutes consent of the governed. that might actually be consent of the governors. in other words, you told them, but you didn't tell me. that's where we are, david. that is right where we are right now. so the challenge as we go forward with 702 and 12333 and all these broad changes, how do we build a certain sense of comfort in the large body politic without being so public that we actually destroy the enterprise that we're trying to legit mate? i'm sorry. that's too long, but anyway, that's where we are.
>> it's an important issue. ben, before i turn to you, i'd just interject that for the better part of 60 years, the rest of the world has followed our lead on this. so it is not just really constrained to a debate inside the united states. our european, asia pacific, latin america partners, african partners all look at this and say how is the u.s. resolving this tension between the protection and secrecy and openness with their societies because our partnership will be guided by if not actually defined by that relationship related to that. >> yeah, and i got to add, david reminded me of a very important point. everything i said, i believe in. i really do. i also believe that we are citizens of a nation with the most transparent intelligence community on the planet. all right? so i mean everything i said
about where we have to go, but our line of departure here is way ahead of any of the other western democracies. the reason european parliamentians wring their hands about nsa and they aren't allowed to know anything about what their own countries do. so they just kind of pick on us. by the way, that's pre-snowden stuff, all right? so interesting reality, right? our political culture demands us to be more transparent. the cost of doing business. we're already more transparent than any other service on the planet. >> general hayden, is it even close? >> no. >> is it even close? >> the story we tell, we have an american congressman want to go to country x and go to installation y. you can't go there, big guy? why. we've got a y over here in the american west. and you can't go to this win because we share it with our
allies and no parliamentarian has ever been allowed to go to that facility, so you can't go. that is a routine occurrence. >> if you wanted to get attention in dni's office from foreign intelligence services, just make it known that you're going to meet with a visiting par lamentarian delegation from a foreign country. i never received as much attention and phone calls from liaison services as i did when was known that i was going to meet with parliamentarians for their country. what are you going to talk to them about? are you going to talk to them about u.s. oversight and the numerous amounts of information you have to share with your oversight committees and others? i'd say, oh, no, i'm just going to talk about how wonderful their country is, their food, the beautiful places to visit in their country. okay. you're not going to mention
anything like the national security act of 1947, are you? oh, no, you know, because that would be classified or very sensitive. i'd say, well, it's kind of in the statute books. it's not really secret that we have these committees. okay. you're right. it's not secret, but it's sensitive. you're not going to go into that, are you? so when you talk about oversight mechanisms and what we have in america, no one else even comes within many, many, many miles or even within a continent of what we have here. so it's easy for a lot of countries to throw stones publicly at the united states while privately knowing that they are very dependent on us and also know that we have the kind of transparency and oversight mechanisms that no one comes close to meeting. >> it still may not be enough. >> it still may not be enough. >> because we have to
accommodate to the broader society. it's an iron law of reality here. >> still under this section of why is intelligence needed, my final question to both of you is can you draw any parallels to the just war theory as it applies to intelligence by way of proportionality in the use of it, overextension of the use of intelligence means or capabilities, where facing those addver sarcies that i think the entire auditorium knows we're facing, what should those limits be within the boundaries applicable to the use of force but applied to intelligence? ben, why don't you as a lawyer -- >> yeah. well, first when you talk about just war in terms of self-defense and the defense of others, fundamentally intelligence is about that.
so that's critical to it. second, you hope you don't get to a just war type of situation because good intelligence fundamentally you hope is going to help you to either prevent conflicts or, if you have to enter into conflicts, part of just war thinking is you hopefully get into a situation of peace as quick as possible. and that's part of proportionality. that's part of fighting that war. so fundamentally intelligence is fundamental to both of those pieces in terms of hopefully preventing war and conflict. and, second, if you do have to enter into war and conflict, that you have the necessary intelligence that's going to allow you to prosecute that in the most efficient manner possible. that will also result in perhaps the less loss of lives. so to the extent you can reduce
that, intelligence is going to be critical to doing that, to doing that quickly. in terms of the other theories around just war in terms of proportionality and those types of issues, that runs throughout the intelligence guidance that you see. if you look at the underlying documents in terms of the types of means that the intelligence community uses, a consideration particularly when you're talking about u.s. persons in terms of using the least restrictive means necessary in some cases or the least broad means necessary. now, there's exceptions to that. there's lots of things we could talk about underlying those doctrines. but fundamentally when you think about broader consefts like just war and then you look at executives like 1233, and that is really kind of fundamental charter documents. if you read that document, you will see these kinds of concepts throughout it, and you'll see it throughout our statutes. >> mike, do you have any examples? do you have any examples of
where you kind of came up across that issue in terms of where the line is drawn? >> sure. and in actuality, it's been suggested the just war principle is of necessity, distinction and proportionality applies to this very nicely. give you a decent moral framework from which the view. the line i use is look, these are hard questions but they're not new. free peoples always try to balance security with privacy, safety with liberty, and the point i try to make to audiences is those are all virtues. we want them all. this is not the forces of light and the forces of darkness, that the security guys are dressed in black and the liberty guys get to be dressed in white. these are all the reasons we organize governments among men. so we have a history of trying to balance what are actually desirable virtues.
all right? how do you do that? how do you make the balancing? i see judge mu casey over here and he and i have talked about this from time to time. it is based on the totality of circumstances in which you find yourself. that fulcrum moves based upon the broader external environment, an appreciation of which is created by good intelligence, all right? and you have this history. i mean what constitutes reasonable expectations of privacy, which is what we're guaranteed, all right? depends upon the totality of the circumstances in which you find yourself. i made a tactical decision on the afternoon of 9/11 with regard to u.s. person minu minimization at nsa. a little tweaking of the dial but within my authorities. but again based upon that we were in a different circumstance. we were aware we were in a different circumstance the afternoon of 9/11 than we thought we were in the morning of 9/11.
so we make these choices all the time. so as you make that decision whether you're going to have to tack left or tack right in balancing these virtuous ends, necessity seems to be a pretty good element to hold up to the light. the proportionality of how much good do i get for the necessary harm i might create. and the distinction -- how much of this can i focus on those that truly deserve, that are legitimate targets as opposed to those who might be what we call incidental or inadvertent collection? we do that all the time. so i think that augustins on to espionage as well as just war. this is a good way for us to calibrate. i will admit a problem, all right? and it's more evof a political than it is the ethical problem that you've laid out, david. in the political process when we have arrived at the totality of circumstances demands we move the fulcrum, that we actually
begin to squeeze privacy a little bit -- by the way, don't take this to be all that threatening. how many of you would have accepted what happens at dulles trying to get on an airplane? how many of you would have accepted that in july of 2001? the answer is none of us would. but the answer is because of the appreciation of the threat, we undergo some squeezing of our privacy. anyway, the broader point i'm trying to make is when you've made that decision based upon the totality of circumstances -- and frankly i think adults make it, and we try to make it wisely. i'm not worried about that. i think we actually can do that well. even as an intelligence professional, i am worried about going the other way. i am worried about what is the political process by which you then, because of the totality of circumstances in which you now find yourself, you can ease up on some of the things that you believe to have been necessary in the previous state of
affairs. you know, there's a danger that this thing works like a ratchet wrench, and it easily goes only one way. i actually addressed this several years ago at a talk at the university of michigan. i said it's hard for me to imagine the degree of political courage required for an administration to say we've done that long enough. we don't need to do that anymore and to pull it back. frankly, i fully embrace the responsibility if people like me argue for doing this, people like me need to be prepared to explain to policymakers how it is he gets to do that and when. and that's also another responsibility we have to embrace. >> i see some folks in the audience who i distinctly remember having a conversation with that if we were successful in preventing another 9/11, that
decades later w would have lots of conversations about, well, you didn't need to do that. why did you do that? that the attack would be -- you really didn't need to do those things. the threat was not that big. nothing really happened here. there weren't the mall bombings that were talked about after 9/11. there was not the shutdown of our transportation network that clearly al qaeda wanted to do. there wasn't the great damage to our economy. there wasn't the additional attacks that people talked about. so intelligence suffers. >> through its success. >> through it's success, you are going to be continually questioned, and we recognized that at the time, and i distinctly remember having those conversations that the more successful we were, the more questioning we would get. but i do worry about what general hayden described in terms of the calibration and where that goes. if we were to lose an american city, what that would really do to our privacy, our civil
liberties, and what the reaction would be. the world, i don't think anyone is going to argue is getting particularly safer these days or that with the technology that is out there and becoming more and more widely available, we can talk about bio. we can talk about chem. we can talk about nuclear. we can talk about cyber. pick your topic. it's not exactly making one feel more comfortable about how widely it's available and the kind of tools that were only available at great expense to militaries, to conventional large-scale militaries who were deterrable. we're in a very different world now in terms of the availablity of -- talk about gene technology and gene splicing to cyber, to chemical. all of that knowledge and technology is available, and there's a down side to that. so when we think about it in terms of what we had with conventional militaries, when we
think about everything from communications to higher-end technology, that's so much more widely available now. and if that were to be used against americans, certainly we're going to be having a very different debate about intelligence and the authorities that are being used against americans. >> back to that earlier comment, if we do our job well, it's just not american saftd we protect. we're bulwarking threats to american liberty because what we will do after a catastrophic failure. >> we've had some very fortunate things. if the plane had gone down in 2009 around christmas, which as everyone knows, that was very close. i mean a fire on a plane is a very bad thing. we're talking about the person who was trying to set off an explosive on landing, final approach in detroit. and if you had 300 empty chairs at the dinner table that christmas, i think that would
have changed america. that certainly got the administration's attention and i think brought home something to them. and fortunately the passengers acted quickly to do that. somebody tried to, of course, set off an explosive in times square. if that had been successful, again, another near miss. that i think would have certainly changed the debate we've had. >> exactly. let's transition on the why is intelligence needed to what impact does it have? and i guess what i would ask mike to start with on this question of what is it that's produced by the intelligence community? let's get into the question of is it right size? do they play better together? there are 17 elements in the intelligence community now including the office of the director of national
intelligence, and the question is how well are they playing together in helping that decision maker make good and sound decisions ten years, 12 years after irppa and certainly since 9/11, where all these efforts to transform the intelligence community have taken place. >> sure. so i'm remembering our early days in the office of the director of national intelligence where we had john negative ra ponte. he was a wonderful choice and actually the perfect choice. my criteria was when the president went out to introduce the new dni, most of america could not be saying who is that guy with george bush. you want somebody that who brought real gravitas to the job, and the secretary did. so he was a great joycchoice. at that time, you got your 16 boxes here, boss. we're drawing the boxes, and he's going, why 16?
that seems like a lot of people. so, david and ben and i walked him through the organization of the community. it's actually a rational division of labor. we're able to speciallize it in the way we are because of who we are. we throw $50 billion a year at this enterprise. we've got about 105,000 people fully employed. dave ig nature us had a wonderful line after brussels. he says the europeans are lining up at the american intelligence levi thon in order -- actually fill finish the thought, in order to get an american intelligence product while continuing to wring their hands about american intelligence collection, all right? so it is a reasonably well organized community. a couple of highlights. state inr, all right? by history, by character, by size, by focus, they do something that even that large stable of analysts out the cia
can't do. i mean it just brings it -- it just brings a different aspect to analytical questions. david was at dia. he probably won't appreciate the description, but those guys are kind of the blue-collar workers of the american intelligence community. they create the databases. they compute the rate of advance of a motorized rifle regimen over frozen terrain, all right? >> it's exciting stuff if you're into it. >> and somebody's got to do that. so it's okay. i don't mind the number 17. we're better at synchronizing the 17. i think all three of us have issues with how much power as opposed to responsibility the dni have been given, all right? but i think we're all broadly in agreement we can make this work if we have the right people on the job, if you've got the right validation and sanction from the president. i think none of us is suggesting blowing it up again or perhaps inviting congress to do it one
more time. no. that can work as well. even in the bad old days, i was fond of saying let me tell you a sentence i never heard. you guys are all screwed up. a sentence i've never heard. you guys are all screwed up. you need to be more like the -- i never got that one. i mean, before you run and say the israelis and others when it comes to intra agency correlation, give me a break. we actually, pre-9/11 were better after the this than anyone else in the world in terms of going left and right across the three-letter agencies. neither god nor you mark on a curve. the fact that we're better than everyone else should not be satisfying. but we were and we had to get better. we've gotten better. i tell the story now with the current crisis in brussels, you know how the europeans get information around europe, right? tell the americans. they go to the hub and we push the information out through the
spokes. it's a bit cartoonish but true. i think we've made good progress. it's big, it's a little bureaucratic. it could use belt tightening. i do have one issue with it, though. my partner is here to see if they share this view. it's not something we coordinated. from the outside looking in after seven years, it is a fairly slow moving body. talking about the he owe it appears to be overly cautious and bureaucratically an acquisition, risk, adverse. dare i say with a good lawyer to my left, badly overlaurd from time to time. so if you're asking me to say anything about the community, take a look at yourself. from the outside looking in, i'm not talking about procurement contract.
i'm just talking about a caution, a conservatism a risk aversion, a slow pace about things. again, jim clapp would be pushing back on every one of those descriptions, i know. you asked, that's my observation. i would add that it's been slow to embrace innovation which transitioned from the government section in major programs to the private sector. so that embracing of commercially available off the shelf capabilities may be modified by two or three degrees from what is off the shelf, is an area where it's been slow to embrace that. ben, any thoughts that you have in terms of how the community is functioning today p j. >> i don't think when we look at
elements of the intelligence community and they loongd at the number 17 and said, gosh that seems like a lot, when you start to dig deeper and look at the missions of each one of those, it sudden i becomes very hard. as you know, when we tried in the dni's office even with not to combine elements of the i.c., but to frankly give missions that were given to the dni back to individual agencies, in some cases the complaints went all the way to the president that said, yes we understand public lynn the dni is being attacked as too big a bureaucracy. but the dni cannot give that back at one of the intelligence elements and order john or mike not to do that. the dni ha this honest broker role behind the scenes. when you look at some
fundamental things that we have, really prevent us from combining elements of the intelligence community. i don't suggest that those are bad things. as much as we've tried to erase a foreign domestic divide in intelligence or the idea of the wall and how much the wall between foreign and domestic intelligence and information sharing has been taken down, we have not changed our constitution, nor should we change your constitution. you'll still have an fbi that -- you would not want the nsa to have. you never combine those. you'll have a military apparatus that's needed for that tactical intelligence to understand the range of missiles and the capability of a recoilless rifle that's different than cia providing nonmilitary intelligence about the intentions of leadership gathering. when you look at the missions of these individual agencies, certainly when we were thinking about intelligence reform and statutes, never really came to the point where you'd say, let's
reduce these and combine these. somehow we'd get a greater uplift from that. what is a challenge and that we i think made some progress on 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 have their own programs? do we need 17 or 16 programs across the community developing different systems, different software, different programs? each one of the elements will say, well, wait a second you need to understand we have our specific mission. we haven't use what he's using. we can't use what cia is develop. you always have those arguments. that's something where i think the dni office needs to show
leadership and it's hard to get behind it. those arguments really have merit or is this about somebody wanting their own flavor of ice cream. we can get uplift from the taxpayer money we spend which is a large amount of money from looking to see the commonality we can have across the community. >> i would interject. there is tremendous value in the millennials and those who have come on the scene in the last 10, 15 years who think collaboration and what the intelligence community calls tipping and kwoouing. a tip off from their agency to another something that the national security agency. there is a view that collaboration particularly in, they would be younger to anyone sitting up here think about in the outside world think that's a good thing inside. among the 17, that certainly has improved from my perspective over the last decade. let me say what difference was intelligence make to the policy
maker 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. um. we talked over breakfast about apple and encryption and all that. i think the broad sweep of technology will make the content of communications more and more difficult to read. frankly it's indifferent to what it is we decide on this case. we may accelerate or slow it but the arc is clear. content will get harder to retrieve. if you think of everything we
collect is a big pyramid. it's a cartoonish way but the base 60 is the bodily signs. every morning you can tell how you are doing. it's comprehensive enough that you get that. the top 20 is boutique. this is general, specific. this is essential. this is elegant. all right? in between you have the other disciplines, imagery, measurement, open source and so on. we have lived through golden age of surveillance, the last 15 years when we mistakenly and clumsily decided to take things we used to put in a safe and now put them in our phone. we have been able to harvest volumes of valuable intelligence through electronic surveillance.
all right? that golden age isn't going to end. but it is beginning to contract. if you are asking me to advise a president. how do you compensate for what was such a rich vein of useful intelligence. i think you begin to shift your emphasis to the other parts of the pyramid that are going to have to take up the slack that's going to be created. it's not me giving up. content will be harder to come by. anyway, how do you shift your weight to to what i think you can predict as inevident able evolution in what information will be available. >> you're not suggesting that's easy further up the pyramid. >> no, no. >> to complement. >> for god's sake, it was great doing it here. it's no longer available. now we have to spend -- it's
going to be harder and different in how we gain it. that would be my macro view as to the broad arc that the community has to follow. >> ben, let me put a spin on this and go to executive order 12333 as amended in april. does that give us what it takes to go into this world of capabilities of the kind that mike just described or do we need to update executive order 12333? >> this executive order entitled united states intelligence activities is 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. human intelligence was mentioned. largely with cia in the lead. military and capabilities. you find those in 12333.
the civil liberties you hear about. bans on electronic that's not pursuant to statute. a fund mental order. updated in 2008. there were many, many attempts. we trace it back to 1981. we amend it. very hard to do back in 2008. a number of decisions going to the president. it is an obscure order. it is the foundation of the community. i think we can continue with 12333 the way it is now. the community can make that work with the way it stands now with a few exceptions. we talk about cyber security. we talked about cyber security in 12333. that was going to go in the too hard to do jar. even with the agreement in a rare time. it was really a golden time in terms of having secretary gates and the department of defense understanding the issues and intelligence.
as the dni and his devotion at the fbi. even in those cases, cyber is fundamental to what so many agencies do that we had to put it in the too hard category. this administration made progress in terms of trying to divide divide the responsibilities in terms of dhs, nsa, fbi, cia and others. but it's still a question in my mind whether we have that right and whether we are getting the uplift across the community that we can in cyber. that brings me back to if we were advising somebody in terms of the next president what improvements would we have or what questions should that person ask? 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 we need right now mr. or mrs. dni, mr. or mrs. secretary of defense to defend the nation's critical infrastructure. n the case of cyber attack. there's been endless warning and testimony that this is one of the top threat s in the country. the president needs to ask that question. i do not want to hear about a commission to raouf the attack
fundamental question. there is no political constituecy out there that will get you electoral college votes in terms of asking the question. it's those types of things as president where you need to hold people accountable to say i don't want to hear from a commission two years from now that there are all these problems down in the community that we didn't have the authority and that no one brought those to the attention. i was elected by the people to
protect them. if there are hard decisions and we need to go to congress and address the issues, i'm willing to take it on. i'm telling you i don't want to hear about a cyber attack on our critical infrastructure and the authorities you needed that weren't brought to my attention because of political concerns or other concerns. as president, let me take that on. that's my job. let's not go through this whole commission again where all of the sudden we are reading about things were overlawyered or there were myths about laws or fiza was out of date. okay. we have done that once. we were told by the staff not to bring it to your attention. it will second improvement i would talk about was the need to support the community. whenner this wrong, they are wrong.
when something goes wrong there needs to be accountability. we can't have a feeding frenzy that goes unanswered that somehow is incorrect about lawlessness of the community. it is a community with more attention in terms of compliance and frankly over reaction in some cases. when you read about 9/11, the myths and barnacles that grew up around cautious activities, i think the president need s to understand the fragility of the work force and our intelligence sources and methods and when there are issues. it needs to be defended. it's not just a one-time defense. not just a one-time speech in our culture. it needs to happen over and over again and explain it to the american people. if it is all one-sided,
portrayed in the darkest corners of the room. that does have an effect on political support. the ability to take that from congress you need to defend the country. when we talk about the amendments act and the issues with fiza and how outdated it was, this was a three-year process. endless amounts of testimony. endless amounts of briefings. every single day it was really three yards in a cloud of dust. as it is portrayed as you showed up. it was outdated and we got a statue. having lived through that 24 hours a day for years. the community need it is support
of the political leadership to get the authority. to double on what ben said, the role of the president in number one selecting the leadership of the community. the structural work depends on the character of the dni, the relationship to the president and the relationship to the director of cia. that has to be the product of careful personal choices. one would hope with the personal involvement of the president elect. when it hits the fan he needs to jump out there. what happened is the win program. when things like that happen we have what we call the long pause. he's the guy that told you to do this. go out there and self-identify
that he told us to do it. it is going to identify. is he going to defend us? in this instance the story came out thursday on the website. probably the way you would imagine that to be in the white house. the president told the staff to throw away the saturday morning radio broadcast. he went on live saturday morning and did what we all would have hoped he did. he visited fort meade visibly. that's what you need from the commander in chief. >> i would interject the team that's selected, i would add one additional one because of a dominant role that the defense department plays. that's the secretary of defense. in the relationship of dni, director of ci, and secretary of defense exclusively delegated to
the under secretary for intelligence. that personnel selection team when it comes to the dod piece. >> to double down on ben trying to do this 12333, hayden, mcconnell and clapper. life long personal friend. it was still almost in the too hard to do box. >> in 18 months or there about. >> i recall certain conversations. people like secretary gates where i recall some conversations said you were drek tor of cia, you supported this amendment and thought we looked at the memos and they were strident about the need to reform and conversations like where you sit makes a difference these days. it was a hard slog. >> moving to the third section of the questions, why is intelligence needed, what difference does it make in terms of impact. i want to start with you, ben, on the question of how well does oversight work. you have touched on it. one of the criticisms levelled against the intelligence community is that there is an essence and i use liberty. there is never enough oversight. enough oversight will bring it
to a standstill. the challenges of collection or the intelligence community personnel. understanding what those rules are. oversight as best i can tell historically truly is the one case that's a one-way ratchet. we add oversight. a few examples we never take away. second, you asked the question about, you know, is the intelligence community too big. is 17 elements the right size? no one asks. we have a problem. we have another commission. another office. another senate-confirmed official. add people to it. there is never a question about oversight because more is better. third, it is a serious question in terms of affecting the mission, how cumbersome it can become and oversight done well with improve the mission. oversight is a one way ratchet. we have oversight and nothing else. i ratchet the discussion down. is the secret pursuit of truth compatible with a democracy?
do they play better together? there's 17 elements in the we have a problem. we have another commission. another office. another senate-confirmed official. add people to it. there is never a question about oversight because more is better. third, it is a serious question in terms of affecting the mission, how cumbersome it can become and oversight done well with improve the mission. constructive oversight can do it. let's lay out the terrain briefly about what we are talking about. of course you have congress with the senate intelligence committee. the house intelligent committee. it doesn't stop there. you have judiciary committees, appropriations committees, the
armed services committees. leadership offices. i could spend the rest of the panel going down the rest of the congressional oversight mechanisms in terms of government operations, homeland security and ohs. we have added oversight in terms of congressional bodies with the general accountability office being given an unprecedented role by statute. something the administration and intelligence community have long talked about with the congress. that statute has passed. you have gao added into this. privacy and civil liberties. you have intelligence oversight. you have general counsel, have i worn you out yet or should i continue? believe me, i could continue with another number of bodies. so we do need to ask the question. they should be subjected to others in the community. is this over it is sight contributing to the mission? is this gotcha oversight. that's something that concerned me. when we think about what happened with national security letters and the fbi in the report that had deficiencies in the use and handling of the authorities. it would have been far better to
have a compliance organization in terms of oversight. in identifying issues, then a report that the way it comes out and identified these problems. i'm somebody who argueford real time oversight in terms of gotcha oversight. >> i have doubled down on everything. good oversight. credentialed oversight may solve the problem i suggested earlier. to the legitimacy of the enterprise. if they are objective and invasive in approving, however we define that. it may go a long way of moving the ball down the field in terms of revealing everything we shouldn't have to reveal. i would suggest pivoting off of narrow and intense is far better than broad. i'm happy with the oversight committees getting deeper into the business. more immediacy. more at the operational tempo of the enterprise rather than looking in the rear-view mirror and adding bodies to the left and right and right and left. creates a bureaucracy the operational community has to feed in order to get on to do
what it is they have to do. one brief example in response to mr. snowden and a special commission 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 protections to nonu.s. persons. i'm not going to argue the merits of that. that's a separate discussion. the bureaucratic overhang of that is incredibly significant. narrow, intense, legitimate. how do i get it out of the congress. i would ask the leadership. and the president could play an additional role to put pressure on the majority and minority committee. put your pros on this committee, your center of the rotors. leave the idealogues over here. i'm sorry, judge. or some other committees.
they've got to go. it doesn't do what we need to have done. >> an unfortunate turn. with oversight. that's 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 over diagnosis dst sight relationship was chairman mike rogers, not to be confused with admiral rogers at nsa and dutch roopesburger on
the house intelligence committee. why they politicized issues and looked at intelligence for value and the value proposition to the nation. that was welcome. mind you, i am not suggesting less oversight or deeper oversight as you put it. certainly where we weren't seeing a mommy-daddy fight every time in terms of it being politicized which takes you to the one bonus question for you. you have a new book playing on the edge. this might be dust on the cleats. metaphors on the football field. one of the topics in the aftermath and subsequent years after 9/11. you're the subject of significant criticism for how you characterize the
intelligence there. do you have comments about, again, that intelligence value versus everything we have been talking about this morning? >> these are edgy decisions. they were not done oh out of enthusiasm. they were done out of duty, a 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 toward the past but toward the future. it was about life saving intelligence. what we did was up to the edge as defined by the department of justice in the totality of circumstances as we knew them to be at that time. necessity, portional ti, distinction. i got there. i changed things. i had different circumstances. this is appropriate for those circumstances. i had different circumstances. we had two statutes that changed the legal underpinning.
we knew more about al qaeda. we had a better sense of threat from al qaeda. i didn't do away it. getting back to the proportional ti. when we have to make these difficult choices. the people at the agency belief that the historical record justifies the program. the people believed we acquired information not otherwise available or not otherwise available in a timely manner. from doing what it was the agency did. 48 hours after they were told to leave langley. there were missteps and misjudgments. those were early in the program. the longer it went, the more
disciplined it became. i don't know what more is to be said. again, we believe the historical record is, as we have described it to be the senate democrats believe the historical record as they describe it to be. i just tire of the issue. the agency won't 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 had a social contract with the government. the case officer gets to ask four questions. attorney general said this is okay, congressman told. he has a social contract that the american republic has his back.
not an administration. it was violated. multiple cia directors when asked is the agency going to waterboard again and just respond absolutely not. not a judgment on what was done before. but a judgment on what happened afterwards. i said to some future president wants to waterboard somebody he better bring a bucket. the agency won't do it. that's not necessarily a good thing. >> ben, often times it's said and i think you made reference to it with secretary gates you stand on an issue where you sit. is there a way to over come that in building that stronger sense of community as we face these incredible threats around the globe, none of which appear to
subside you stand where you sit. >> so you're asking can i solve the iron laws of bureaucracy? if i could i think i would be in a different position. but more seriously you are going to have those iron laws of bureaucracy, those issues. they all said the same thing no matter what your political views, your views on the issue and how amazing it was to see the community sitting together in operation centers overseas and -- >> the agencies. >> the agencies together. what it brings in terms of the tactical and supporting the military. having those people together
because they were forced together. supporting the war fighter and other efforts. gosh, if we could replicate that in d.c., why does d.c. seem impregnable to what's going on over seas. we have 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 is a continual struggle to make what happens in a foreign expeditionary sense. including the fbi being over there and overseas thinking about what this will mean domestically and bringing it back and penetrating what seems to be the walls that are put up once you come back to d.c. there is always more progress so
be made there. that's a place where the dni leadership of the intelligence community need to think beyond themselves. to continually work the problem because it will always have a bureaucratic inertia to slide back of i don't want to share my best people. i'm responsible for my agency. i need to think about doing the best for my agency as opposed to thinking in a community sense. we made progress but it requires continual attention all the time. all of the forces are against that in some sense. that's a place where it was one of the reasons for standing up the dni to make sure the issues
don't slide back to where they were where we don't have a sense of community. what you saw overseas. we talked about cyber. having the capabilities and understanding across the communities absolutely critical. it can't be done in a weekly or monthly meeting. you have to understand what's going on with the 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 how critical the 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 it will be both in building the trust and the confidence but in addition, as you have described, ben, the able of the team to get
things done. such as security clearance reform. yes, one of the things that's really hard to do, not very attractive by way of headlines but everyone here knows we are still doing 150-page sf 86s just as one simple example in terms of security clearance process. those things and working that together as a community. i would like to take a question. we are almost out of time. first hand up, please. >>. [ inaudible ] gentlemen, this has been a really enlightening morning. i'm a soldier, no longer young. my name is michael kraus. two wars, four continents, five
contingencies. my question become it is existential threat from and the potential threat of nations that commit little green men to cross borders. you spoke of intentions, proportional ti. are we securing borders well enough for proportional reactions? as a soldier, i defer to the component. >> it brings together the how, the why and the what. >> it's not a dilemma but a dynamic. the more aggressive i allow intelligence to be the earlier i would identify issues or actions
i might take allowing me to do things almost certainly with a lighter touch, fewer resources and more impact than would be the case if i were forced to do it later. isis the hard now. it was hard a year ago but not as hard as today. i can run that back to decisions made with regard to residual forces in iraq. as time goes by, you lose leverage. you don't get a pound of output for a pound of input. it works against you over time. if you are too cautious with intelligence selection you may block yourself into policy choices. if the ones available, the one you might think about being more rather than less grove t it has
not been the trend line in the last couple of years. >> excellent question. it does wrap this up. the islamic state was a miss. they didn't see the rise islamic state and the taking of the territory. that's not a criticism of the community. it goes back to what general hayden says. you are dealing with hard problems in setting the boundaries. just because i say something is a one of ten and that comes to pass, don't say we didn't warn about it. they have said it was not a misbecause of doing something wrong.
it was difficult to understand the dynamics when dealing with human nature, the intelligence community as much as you are making predictions of the future. is assad's army to have military capabilities. we can have intelligence about the morale and the state and their funding and everything. when the bullets start firing, you know, is there going to be something that causes it to fall apart or will they stay cohesive and fight? what will putin do with little green men and others. these are difficult problems for
the community to stay on top of. we are going to continually be challenged now. the problems become a problem. that cause it is staff to spend more aggressive with intelligence. in terms of how we use the intelligence community on the threats you identify to wrap up some of the pieces we talked about. this is over simplification. as somebody told me from the united kingdom there are two ways when you talk about intelligence, making cases and those things. those are sources and wires. sources being human intelligence that can be from spies and others. people you capture and gather intelligence. wires, we are talking about signals intelligence. the less capability we have regarding sources and the less capability we have in terms of wires, the less capability we'll have when we talk about protecting borders, the islamic state, nation states like russia creating places like the ukraine and elsewhere. >> as someone who handled the
transition in 2008 and 2009 went from president bush to president obama. a 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. he sits in the chair as president and says tell me the secrets. that's a bad time for the dni and nsa as they sit around the chief executive of the nation.
that's always been my concern. that expectation of what intelligence can deliver in order to offer up where they started the conversation this morning. on decision advantage. the knowledge that the enemy doesn't have in order to at least consider other options. the chief executive of our nation says now tell me the secrets. now this doesn't quite cut what i thought you actually would provide me. that would be a bad meeting. it goes to the heart of your question. are you collecting and analyzing and delivering. that which allows that decision advantage from the counter intelligence weight to the information. what you know and what is the assessment of the book. >> the whole chapter on el cabar. in the eastern syrian decert. it was destairwayed. we got it and presented it to with president with the help from a middle eastern ally in
april in 2007. this thing is damn near done. they have a cooling pond in the river. they are cooling. for all practical purposes from what we could see any today now. they could be inserting uranium into the facility. as you found it, we are right. it was indeed a nuclear react tor. we didn't give the administration much decision space at all. >> there are few good choices when you have had this near complete nuclear reactor. that intelligence process constrained the policy choices that the president might have had. if you are able to tell him 6, 8 or 12 months earlier. >> time is up. two minutes over.
why we collect intelligence and drill down a little further. collection authorities and the rule of law touched on in the first panel. i can't think of three better men who have lived this and worked in the area than the three you see sitting before you. my close friend and colleague paul rosenswag will guide the discussion. a fellow from heritage. he also served as a deputy assistant. homeland security and other distinguished posts throughout his career. he owns his own consulting firm called red branch which does valuable work. i'll turn it over to paul. >> appreciate being invited to moderate the panel. though you did caution us against too much of an introduction.
i might briefly mention my two panelists here, matt olsson to the far left is a graduate of the sadly not going to the final four. a university of virginia. harvard law school. he's a former director of the counter terrorism center. he's president of development strategy, he cofounded with former nsa director keith alexander. to my immediate left is a federal judge from 1987 to 2006 after a brief stint in private practice he returned as the attorney general under president bush. he's of a new york law firm. the title is counter terrorism collection authorities and the rule of law which when you think
about it starts with something of a conen drum or conflict since intelligence and es pea naj is at the 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 the laws of those countries. likewise when the russians send somebody here it is certainly a violation of american domestic law. yet the hallmark of american democracy, one of the hallmarks of american democracy is our commitment to the rule of law. the idea that we are a government of laws, not of men. and that are -- has been of varying intensity. it goes back as far. my first story is henry clay who
famously said as congressman what the president did with his secret intelligence community was of no interest to congress at all and should not be. fast forward, of course, to the 1970s and the significant oversight put in place in the wake of the church and pipe commission. fast forward to 9/11. the perception of heightened legality requirements as having constrained the effective collection and use and analysis of intelligence. we have had this discussion for over 250 years. it's best captured by the title of general hayden's book we heard about of playing to the edge which reflects his
statement in the wake of 9/11 we move to the edge of what we perceive to be lawful. up until that date we were playing back from the edge with a great deal more caution because of the perception of the requirements of legality. the requirements of lawful conduct stand on grounds of accountability and more importantly transparency that are sometimes in great tension with the requisite sec resi that's the effectiveness of intelligence collection. 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 regular golden state intelligence collection. more fundamentally whether or not it's feasible to have an intelligence community that acts within the bound of law in a democracy and still be effective in some way.
with that very brief introduction, i want to turn to one of the most notable programs that is in the news today and will be in the news in the next few months and years. it is known as the section 702 internet after the section of law. the section authorizes surveillance of foreign intelligence purposes broadly speaking. the law is up for renewal. some see the need for amendment. let me start with you. do you see any legal weaknesses in the statutory and constitutional underpinnings of the program at all. >> i don't see any constitutional weakness in the sense that we have to remember that the constitution is not a treaty with the world. the constitution protects united states persons whether here or abroad. it protects anybody. it doesn't protect everybody in
the world. as a result it is perfectly constitutional to authorize our intelligence agency around the world to collect what they can and need which 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 americans have and candidly that gives me some pause. to the extent that order impacts our intelligence collection, i assume it does. otherwise it wouldn't have been issued. i am -- i wonder whether that constraint gives us the flexibility we need. >> if i could go back to your opening comments, what you said about nsa or the general council i teach a law school class. i made exactly the same point you made about the role of es pea naj.
being the head lawyer. nsa's job is to go around the world and break the laws to collect intelligence. the key is they don't break the law of the united states. your point being in your opening comments all about we live under rules of law in this country and my experience of men who work at the nsa. at the same time i would say going to general hayden's metaphor we had the opportunity to talk about it. it's exactly right from the point of view of an operator. you need to be on the line. you need to have chalk on the cleats. that's the expectation the
american people place on leaders in terms of protecting the country. the point from the legal perspective is that makes your job hard as a lawyer. this metaphor to take it further on the cleats. from a legal perspective it supposes we are discernible, straight and static. none of those are true. the line of legality from the point of having to advise the director of the nsa or cia, that line is not clear. it is not obvious to discern it. it is not a straight line. it moves in zig zags metaphorically speaking. it's dynamic.
subject to interpretation with the executive branch often from congress and the judicial branch. in terms of the complexity that this discussion today right now on the rule of law and our intelligence capabilities presents real complexities for the lawyer in the space. which is now then to say 702 is an extraordinary statute in reconciling competing interests and the consequence of years of experience going from the church committee to fiza to 9/11 to changes in technology to judicial decisions, multiple two separate evidents by congress to come up with 702 and finally rechlts a delicate balance of the interests at stake. i can give you insights into the operational aspects of it. that's important, too. >> i want to look at your discussion about the uncertainty of the line actually prompts a slight change. what do you both think? you served in high legal
advisory capacities within. what's the role of a lawyer? is it to tell your operator how to get as close to the line as he thinks he needs or is it to council caution and tell him get this close and no closerer because there is uncertainty and as your lawyer i want to make sure you are on the good sideline. we don't want to go too far. as council to people in the intelligence collection
community, how did you and how would you approach that. it was up to the policy makers and the operators to determine where within the lines they could function. in the intelligence collection community, how did you perceive your role and how would you approach that problem? just any ygenerically, without 702. >> in general bounds it was to describe what the bounds are and it was up to the policymakers and the operators to determine where within those lines they could function. occasionally they would come back and say, look, we want to do "x," "y" or "z." legal or illegal. and at that point, yes, it is about line drawing. i should tell you as matt just pointed out, some of those lines are not bright. for example, 702 permits --
doesn't permit it, it recognizes that there is going to be incide incidental collection of information about u.s. persons overseas. when you're setting a wide net, casting a wide net, you're necessarily 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, both of the people who are using 702 and the people who are overseeing the people who are using 702. that is, you gather information on a u.s. person, it has to be incidental to what it is that 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. that's going to get you in deep trouble. jack goldsmith in an excellent book called "the terror presidency" published back in 2007, or 2006, actually, i
think, described what he called cycles of aggression and timidity in the intelligence community and that is what we've been living with over the last several decades where the intelligence community goes too far and is criticized, is yanked 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 dots. now we're having a debate about whether you're permitted to gather dots in order to be able to collect -- connect at a later date. so the cycles continue which is regrettable. >> i mean, i completely agree with judge mukasey in terms of the role of the lawyer and the importance of line drawing but the difficulty of doing so as
well as the challenge and danger of the sort of pendulum swinging, what you're seeing, how that impacts lawyers and the advice they give. and some of the dangers inherent in having lawyers who have become too risk averse because it's often easy to say no, often easier to say no than to say yes. you know, when i would advise lawyers at nsa and at justice as well on this question, you know, i think there's sort of the -- there's -- you can have multiple roles as a lawyer for the government. in some cases you are simply advising on what the line is, where the line is. and what the legal rules are. and i always thought it was important to be explicit that you are now talking about the legal rule before you, perhaps, are asked to give your judgment about the policy. you know, that's the legal rule. now to your question, should we stay back from the line to avoid the danger of potentially going over it.
now you're in a policy realm. you're starting to give advice to someone who's accountable for making that decision. you as the lawyer typically are not. on the policy judgment. you can give advice on that. here's my thought on the wisdom of that course of action. but you should be explicit that that's now a policy judgement so that the decision maker is not confused to think that what you're saying -- that option is off limits because it's illegal. i just think making a very clear distinction about where the legal lines are and where your policy advice is is really important. >> let me just press on that just a bit because one of the things that you said earlier that really struck me is the line is often indefinite. so the choice of how you express that line to your client is sometimes not a policy choice, but a quasi risk choice you make. so do you give your client both lines? this is the maximum line. this is the minimal line?
or -- >> i think that's exactly right. you might say, you know, just at an abstract level, this is clearly over the line. >> mm-hmm. >> these range of options that are close, and you expressed it i think in terms of risk. there's some risk. the risk could be -- a court could look at it differently. judge mukasey, his role as a chief judge in the southern district of new york would look at it differently. there could be risk congress could look at it differently and the american people look at it differently. there is risk. expressing it as risk calculus is a way to think about it. when you talk about 4th amendment questions where the touchstone for 4th amendment is reasonab reasonableness, nothing more specific than that, a body of case law, of course, behind that. but that body of case law typically applies to, you know, police officers on the street, the not intelligence officers overseas. there's not the same degree of case law building up behind what reasonableness means so that
makes this really difficult. and i think an appreciation of that is important. >> there's danger in pulling back too far from the line. i think we saw that pretty vividly after 9/11. the justice department, it felt the sharing of intelligence information with criminal investigators was something that the statute barred so this wall was created in which intelligence gatherers could not notify the criminal investigators of what they had found. it turned out in subsequent litigation that that fall was a figment of their imagination but we very well paid a price for that on 9 /11 when two jackers sought by the criminal folks, came into the united states, the intelligence folks knew that. they couldn't conduct with the criminal folks. as a result, the fellow at the controls of the airplane that hit the pentagon was not detected.
>> so let's circle back to 702. you want to give us a little operational context, which would be useful for the legal questions i want to ask next. >> think it's important as we talk about the legal issues around 702 to at least give -- take a moment to think about the operational effectiveness of it. my last job i was at the national counterterrorism center, i would say from that vantage point there was no single authority that was more important to counterterrorism in our u.s. counterterrorism efforts than section 702. it provided a significant proportion of the intelligence reporting that we received on counterterrorism targets, networks, plans, locations. i would, you know, a day did not go by that an intelligence report that i was reading didn't at some -- have some part of it the contribution was from section 702.
it was to the point where analysts at nctc knew that this came from the 702 collection. it was a statute that was just a few years old. right. but people would say this came from 702. actually don't take my word on it. i went look back and looked at the privacy oversight boards of 702. a definitive account. couple hundred pages review. they had access to all the classified information and they concluded that section 702 had directly enabled the thwarting of specific terrorist attacks aimed at the united states and that it identified the sites of targets of attacks, the means being contemplated to carry out the attacks, the identities and locations of the participants. they really came down quite strongly on the side, i think recognized, acknowledged that the value is difficult to overstate. and lastly, if i could just say many of you are aware of the zazi example, the new york city subway bomb attempted plot. that is largely attributable to the -- that was foiled largely
attributed to 702. >> 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 about intelligence gathering and if you're talking about stopping a plot when somebody's about to chamber a round, no, you're not going to find a whole lot of plots that are stopped by particular programs. that's not the principle way in which intelligence is used. it's used as part of a whole. it's used along with human intelligence, it's used along with open-source a material that you heard about from general hayden. when you put it together, that allows you to prevent things from getting to a point where somebody is chambering a round. >> 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 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 the express or authorized purpose of it, that information once collected is, according to critics now, usable for foreign intelligence purposes and they are concerned possibly even shareable with other law enforcement or domestic non-intelligence purposes. that, to my mind, is going to be the ground, if any, of the major portions of