tv Politics and Public Policy Today CSPAN May 16, 2016 4:19pm-6:20pm EDT
issue that really stretches your boundaries. >> you spent your summer abroad on real ships rather than internships and the specter of living in your parents' basement after your graduation day is not likely to be your greatest concern. >> watch commencement speeches to the class of 2016 in their entirety from colleges and universities around the country, by business leaders, politicians and white house officials on cspan. the campaign 2016 bus continues its travels to honors winners from this year's student camp competition. the bus made a stop in new jersey to recognize madeline bound for her second prize video on "the house becomes a home." the bus then travelled to west
scranton intermediate school in pennsylvania to honor eighth graders for their second prize winning video "national immigration issues." during the ceremony, they donated their winnings to a local charity. following this event, the bus drove to clinton township middle school in new jersey. over 250 classmates, teachers, family members, and elected officials joined in the ceremony. a special thanks to comcast for helping to coordinate these community visits. you can view all the winning documents at studentcam.org. >> the former president of the civil liberties union recently sat down to discuss national security and privacy. this is about 90 minutes.
welcome to this session. [ inaudible ] my name is furchtgott-roth. i'll be your moderator today. just a couple housekeeping notes. on june 22nd, our next event will be with former commissioner of the federal trade commission joshua wright. he's a professor at george mason university. and he'll be speaking about the independence of agencies and the suppressed role of economists. on july 6th, jeff, the former president of come gate university and president and ceo of the museum will be speaking about problems associated with anonymity on the internet. we hope all of you can join us for those events. today, we'd particularly like to work our cspan audience.
we have a wonderful program today with two of the leading speakers in america on issues of civil liberties and security. we will -- they're going to divide the time between them. on my left and on your right is nadine strossen. nadine is the former head of the american civil liberties union. she is in my view the leading and most articulate spokesman about civil liberties in america and i think that's an understatement. she has frequent speaker both here in washington and around the world. and we look forward to your comments today. david rivkin is one of the most
prolific writers. i think he is probably the most frequent columnist in the "wall street journal" writing about a variety of topics usually related to constitutional law and the role of the federal government. and he is -- in fact, it was one of his mini columns that sparked by interest in putting this event together today. just kind of randomly, we'll have nadine speak first. she'll have about 20 -- no, 15 minutes. david will follow with 15 minutes. they'll each have ten minutes after that. then i'll have a few questions and then we'll have questions from the audience. if our online viewers or our cspan viewers have questions, what is the -- @hudsonevents is
the twitter handle, too. send in questions and we're happy to take questions from our audience. with that, nadine. >> many thanks to you hard for that gracious introduction and for arranging this program and thanks to all of the audience members for your time and interest in this important topic. i'm glad to once again share the podium with david rivkin. we debated each other about this issue several times since 9/11. one such debate was for the intelligence squared series way back in 2007 when we addressed the following provocative question. better more domestic surveillance than another 9/11? well, not surprisingly before the debate, most audience members voted against another 9/11 and hence for more surveillance.
however, i am proud to say that my debate partners and i persuaded almost 20% of the audience members to change their minds. so we ended up winning that debate. notably one of my debate partners on that occasion was bob bar. it's notable because he was a conservative republican member of congress from georgia and notably one of david's teammates was andrew mccarthy, the federal prosecutor who led the prosecutions of the 1993 world trade center bombing and other major terrorism cases. and that is notable because recently andrew mccarthy has been speaking out strongly against excessive government surveillance as have others who have held top counter intelligence and national security positions. they maintain that national security and personal privacy in our online communications are mutually reinforcing and
correspondingly that excessive surveillance undermines both security and privacy. to explain why that is, i would like to quote publications by some of these former officials. first from andrew mccarthy and as i mentioned the former terrorism prosecutor in the national review of which he is a contributing editor. his comments were triggered by the apple/fbi controversy, but they address the general points about government's limited power either to constrain individual rights or to conscript private business. as andrew mccarthy wrote, quote, our rights to communicate and be free from unreasonable searches preexist law enforcement's capacity to intrude on them. it is law enforcement's burden to evolve technological surveillance capabilities that can be deployed in a manner consistent with our rights. the constitution's point is to
limit government's ability to intrude on liberty, not to limit the scope of liberty to government's capacity for intrusion. again, former federal terrorism prosecutor, former debate partner of david rivkin. let me quota recent "washington post" op-ed by three former top national security fishes. mike mcconnell, michael chertoff and william lynn, former defense secretary. for several years, they have been writing that the chinese government poses a serious national security threat through its massive theft of intellectual property, technology and business information. they therefore advocate ubiquitous encryption to protect against such cyber exploitation.
they do recognize obviously as former law enforcement security officials, they recognize the serious concerns that the fbi has raised that such encryption would allow criminals to keep their communications secret. but they explain, we believe that the greater public good is a secure communications infrastructure protected by ubiquitous encryption without building in the means for government monitoring for three reasons. first, this would protect individual privacy and business information from exploitation. second, requiring u.s. technology providers to build in access for law enforcement will not prevent malicious actors from finding other technology providers who will furnish ubiquitous encryption. finally, if the u.s. makes this demand, other nations such as china will insist on the same. there will be no principal basis to resist. they therefore conclude as
follows. strategically, businesses are essential to u.s. national security interests. therefore it is essential to protect u.s. business from economic espionage. and that strategic impaerative may well out weigh the practical benefit of making communications more easily accessible to western authorities. let me summarize the theme i have been developing so far. our debate topic raised complicated nuanced issues. balancing liberty and security, privacy and security is not a zero sum game. experts' positions don't follow any predictable patterns depending on factors like political views or whether their backgrounds lie in national security or civil liberties. let me again quote from a debate i had against michael chertoff
at the federal society national lawyers convention when he was homeland security secretary under president george w. bush. i quoted this line many times because i so completely agree with it. he said, we cannot live in liberty without security, but we would not want to live in security without liberty. again, i wholeheartedly agree with both parts of that statement. i devoted my life to advancing civil liberties and i have never felt liberty to be more endangered including my own personal liberty to be more endangered than when i was in a country that lacked basic security. while i was boning up for today's debate, what i found most terrifying about government efforts to expand surveillance was not only the encroachments on privacy and free speech, negative as those are as an dry
mccarthy noted in that quote i cited earlier, but i am also at least at terrified by the prospect that ramped up government surveillance will make all of us law-abiding citizens more vulnerable to crime including terrorism and sabotage as explained by respected technology and security experts. i have to confess, i'm a patriot, but i do not share the statement give me liberty or give me death. i happen to believe that i should be alive in order to enjoy my liberties. i want to quote a brief that was filed in the san bernardino apple/fbi case by a prominent respected group of security and cryptography experts. they detail the serious security risks that would result from forcing device manufacturers to
facilitate access by u.s. law enforcement as the fbi was seeking to do. now, exactly how serious the risks are depend on exactly what the manufacturers would be forced to do. as the security experts explained, the worst case scenario which is consistent with what the fbi was arguing for, that worst case scenario would be if apple were forced to sign the custom code that the government wanted to force it to design and if that code is capable of being used on any apple device with the same operating system. let me quote the experts. if that leaks, the public danger would be literally catastrophic. after all, iphones and ipads are used by ipads and president obama. experience in history lead to the conclusion that forcing a company to undermine its own product security will imperial
not just the cybersecurity, but also the physical security of its worldwide users. in sum, weakening communications privacy protections far from advancing security concerns to the contrary may well have a net negative security impact. we have also seen repeatedly how government overstates how important surveillance is even for specific short-term security goals. examples include the high profile confrontations between the fbi and apple, the one i already mentioned involving the work iphone that was used by one of the san bernardino terrorists and the other one involving an iphone used by a brooklyn drug dealer. in both cases, the fbi insisted over and over again that it could not access the data on these phones unless courts took the unprecedented step of
common dearing apple to design and authenticate software that would let the fbi break into its customers' devices. yet in both cases, those claims turned out to be unfounded. first in march, the fbi announced it had found an alternative way to access the san bernardino phone. and a couple weeks later, the fbi announced they also found an alternative way to access the brooklyn phone. we saw the same pattern with the national security agency, the nsa concerning the sweeping meta data collection program for all of our telephone calls which edward snowden brought to light. in one-sided secret proceedings before the fern intelligence surveillance court, we now know thanks to recent disclosures, the fbi claimed that this dragnet surveillance of us innocent americans was the only effective means for keeping track of suspected terrorists. i'm quoting from their briefs.
to the contrary, the independent analyses of that program have concurred that the nsa's up discriminate surveillance has not made any contribution to our counter-terrorism efforts. that was the conclusion of both high level conditions that issued detailed reports on point in 2013 and 2014. first the president's review group on intelligence and communications technologies and also the privacy and civil liberties oversight board. indeed, the nsa itself has backed down from its former extravagant claims about how essential this program allegedly was in the briefs that the nsa has been filing in the open federal court proceedings and challenges that are being brought by the aclu and others, the nsa in contrast to the overblown statements about how
essential this program allegedly was that it made before the fiza court, in open court where those claims are subject to rebuttal by an adversary to review by the public and the politicians and the press, in that context, the nsa is making only the infinitely more modest claim that this program can complement other programs and may advance counterterrorism efforts. as d.c. federal judge richard leon commented, these hypothetical endorsements are not exactly confidence-inspiring. no wonder he concluded that such a limited possible security benefit could not justify the huge costs to privacy and freedom of speech, not to mention the security dangers that security experts are also flagging. judge leon accordingly issued two major rulings striking down
the nsa's bulk metadata program as unconstitutional and those rulings are especially noteworthy because he is a respected conservative. the supreme court has long recognized that government surveillance of communications, chills or deters our fundamental first amendment freedoms, including freedoms of speech, press, religion and association. the court long held that such surveillance must be subject to especially strict standards even when it is undertaken for national security reasons. indeed especially then as the court has explained, though the investigative duty of the executive may be stronger in national security cases, so also is there greater jeopardy to constitutionally protect its speech, including political dissent in national security cases. in fact, multiple recent studies have confirmed that our
awareness of government surveillance has a demonstrable chilling effect on our online expression. in particular, reducing the expression of non-conforming minority views. for example, just last month, one study showed ironically that this self-censorship in the shadow of surveillance is pronounced among people who support mass communication surveillance as necessary for national security and to say they are not bothered by it because they haven't broken any laws and hence they have nothing to hide. yet there is an impact on their self censorship of views they perceive as being in the minority. i would like to quote the lead researcher for this study, wayne state university professor. surveillance is enabling a culture of self censorship that further disenfranchises minority groups.
surveillance therefore undermines the internet's ability to serve as a neutral platform for open deliberation. well, given the complex, nuanced factors at stake and internet surveillance, i would like to suggest a general framework for assessing any proposed surveillance measure. i am not taking an absolutist position here any more than the united states constitution does. no doubt we are going to have many disagreements about the technological, strategic and other factual aspects of each situation. perhaps we could agree on the pertinent issues that we should evaluate. in the u.s., this analysis often takes place under the fourth amendment that protects us from unwarranted government surveillance. now i would like to invoke the
similar principles under international human rights law because they are a bit more elaborated and specific and detailed and completely consistent with fourth amendment analysis. first, the government has the burden of supporting any surveillance measure by a detailed and evidence-based public justification. second, any such measures must be set out in public laws that are precise, transparent and nondiscriminatory which con train discretion and provide effective safeguards against abuse. the surveillance must be subject to authorization. fourth, surveillance must be resorted to only when necessary to achieve an enumerated important goal and as we often say in the u.s., the least intrusive means available for achieving that goal. fifth, the benefits gained
through these measures must not outweigh any harm they caused including harm to third parties and to network infrastructure and security. and finally, these measures should be overseen by an effective, impartial, and independent civilian oversight authority. in conclusion, too much post 9-11 surveillance has not conformed to that framework and sadly has been the worst of both worlds. it has made us less free, but it has not made us more safe. thank you very much. [ applause ] >> i also wanted to thank harold and hudson and the dean for coming here today. i want to speak for a little bit and hopefully we'll have some
good debate. let me go a little bit broader i should say in advance there are some points where na dean and i agree, and we kind of fundamentally disagree. let me walk through the assessment. the folks were opposed to the surveillance and we are facing a serious threat ranging from the lone wolf attacks to attacks by terrorist organizations. we need to be very profound about it. anyone that watches the news knows that they have more numerous entities and you have serious problems. we have not had existentialist levels of attacks using weapons of mass destruction. been lucky in many respects.
i don't know if luck would indefinitely hold. we had mass casualty attacks in places like paris and brussels. we have been much more fortunate on american soil. we can talk about why that's the case. we have had san bernardino and boston and we are quite vulnerable again to attacks that would spoil your day if you happened to be caught in an attack that would degrade the quality of life in large regions and may impair even more fundamentally our national survival. i would say by the way we're very vulnerable civilization. people write wonderful studies about it. attacks that leave large portions unable to have electricity restored for days and weeks. it's not just a question of not having heat and air conditioning. it's question of not having
transportation because of course all of our vehicles get fueled using pumps fueled by electricity. it's not having any law and order because the police rely on the same types of techniques. not having national guard comet set ra because we're all depend upon transportation. so we are facing a serious threat. now, fortunately for us despite folks in this country, doing lone wolf stuff and some penetration by the bad guys, that threat is mostly overseas. we have the enemy that is operating at military calls the lines of communication. not very clear hierarchy. frankly not the greatest, thank god for that. platters in the world. that means that one of their areas of strategic vulnerabil y vulnerability.
between the fact that they are not easy to discern. they're quite resilient. they draw a tremendous number of sympathizers. and they say we have no shortage of volunteers. we can degrade them overseas using drones and various other attack methods, but fundamentally, they are an achilles heel of communications. so we have to disrupt their communications. we have to learn how they communicate. that's good news because again we have technology that can help us to do that. the bad news is we live in a world where people are very anonymous. not to bore you with history. the world is much larger place, it is much, much easier to be lost in this world. don't carry passports and they need to document and it is easy to fabricate. most of us did not know our
neighbors. it's very, very easy to be lost in places and again comes up every time they investigate some attacks, tragedy like san bernardino and boston. so the good news is, despite this tremendous anonymity given the way we live, buy things, sell things, rent apartments, rent cars, pay for meals, pay for lessons, there's a lot of footprints you leave. analogizing them and footprints again in the olden times as you are tracking from the snow, there is lots and lots of electronic footprints which can be only discerned if you are engaged in surveillance. by the way, with all due respect to the limitations about indiscriminate surveillance, by nature you need to have surveillance of the entire
landscape. if you think about it in terms of hunting, you need to be able to go through the woods and look around. you don't know where your prey is. i understand in the law enforcement context, you have something first to start an investigation like probable cause. reasonable suspicion. probable cause, manual straight. i do this stuff for a living. i get all that. but it's utterly irrelevant in the counterterrorism context. and to say as some folks on the hill like rand paul, indiscriminate is bad. it has to be indiscriminate, number one. number two, i will perhaps shock you a little bit by saying we have to surveil more. not only i would restore the metadata collection, i would couple it with a comprehensive
data mining of all sorts of other databases. which again, not a new idea. it had a somewhat unfortunate name of a total awareness program which was briefly kicked around after 9/11. unfortunate nacortunate name. even in early post-9/11 days it did not last very well. the notion that you can really ge intelligently assess the value of this effort. how many terrorist plots did the collection -- and you know what metadata is. it's a silly question. what is the role of a particular subset of your artillery capables. or what's the role of one transport helicopter after many
helicopter fleet. there are synergies among them. you presumably want to invest money in something that has some relevance. nobody ever in the military context subjects a particular facet of your capabilities do that type of answer. you cannot. you use your fixed wing aircraft, helicopters, troops on the ground and you defeated the enemy. yes, people engage in operations research afterwards and come up with generallizations. you cannot justify anything well by requiring the government to prove almost beyond a reasonable doubt that makes sense. so again, i would combine -- i do not agree about encryption. but i would engage in most wide ranging amalgamation of all sorts of publicly available data. because look, yeah, the good
news is if you put things together -- and i'll tell you a second how you do it in the age of cognitive computing. for example, if you put together some of the strange things. for example, he went prior to san bernardino, went for some target practice. i'm not done in many areas. i chose one that is close to my house. he went to multiple target ranges. it was kind of weird. so that's one little data point. let's say he engaged in other types of behavior in what types of establishment his frequented, what he bought, what types of phone calls he made. not talking about contenting talking about metadata.
i'll try to rinse you in a second no reason of expectation of that data. if you put those things together, you can get a meaningful number of red flags. not a certainty that someone. a terrorist. red flags. you can get red flags that enable scarce resources to be deployed appropriately, bring to bear. it's reasonable base sit, starting an investigation, a reasonable basis to look at things which is all you do. by the way, surveillance has to be accompanied by vigorous use of humans, particularly in the area of resources, comfortable, the local police department does it, fbi does it. you cannot do it with millions of people to look at. they don't want to profile based on the religion and having this type of surveillance is the only
way to prioritize law enforcement resources. i also think that frankly even if the other benefit enough, i used this term before, the other benefit is what i call virtual attrition. the important term in military art, but what it does is put pressure on the other side. you are forcing them to operate not in optimal mode. if you use drones, it's not a matter of killing bad guys, it's they skulk about. making sure they don't get together every time they want to. if you are surveilling, that means they will operate or communicate not in the optimal mode. they will not have the same information density transmit and communicate for channels that have coding and decoding. it has value. that's what the military does. it's not all about killing things and breaking things. it's about making them operate
in less than on ptimal mode. all of that results from the widest possible range of surveillance. cognitive computing, something i'm interested in for other reasons. one other reason, we assembling a treasure trove of information and nobody can make headser 0 tails of it. with the meta data, you can figure out you can look at the computer and various other things, what ibm was doing and very, very close to the point where cognitive intelligence machines would be able to analyze data to precipitate out patterns and say, then present to their human overseers, look, they have 50 or 60 tell-tale signs that they need to look at this person or
that organization. as far as encryption is concerned, nadine and i agree, not so much with a balance cost of benefits, i don't get that. basically it would not work. i have written suggesting that back doors and mandatory dekripgs keys should be provided, should not be provided because, you know, the risk of integration by bad guys is -- is worse than the benefits of reading the information. basically that data stream is going dark, ladies and gentlemen. it's very simple. even if you force old technology companies, like apple or companies overseas to provide you with the capabilities, you can generate your own encryption algorithm using basic type
computers. it would not work. now interestingly, however it is, in able to discern that somebody's using the strongest possible encryption is customizing encryption, not commercially provided encryption it's an interesting tell-tale sign. no matter how paranoid we are if i'm talking to you or my friend from college day and i'm using encryption and it has tell tale signs, why was that? it's one interesting -- interesting sign among other signs that can be used to precipitate out potential things where to look at. the thing that depresses me the most frankly, quality -- i'll stop in a minute -- about -- i submit to you, and i hear that there were terrible abuses. i don't know what the hell we're talking about. there have been no abuses.
the government is a beast. in any administration. some are better than others. you better remember that when you talk about the good things. they don't do things perfectly. we don't deliver good and services perfectly, don't deliver medical care well, social services well or national security well either. so there are always debates and disputes and and people step on each other's toes and write reports that are not only true but bureaucratically preference. but by any reasonable historical standard, thinking about all the bad things that happen and the aftermath of world war i and world war ii and cold war and witch hunts and mccarthyism, what abuses aside from this hugely overblown stuff, i wish i could put it more robustly by snowden, has anybody been punished and repressed, lost jobs, lost tenure, put in prison, had accounts frozen?
you know, i mean the worst thing is the so-called thing that turns out, for one thing, intelligence agencies operating with a tremendous amount of oversight with internal checks and balances with fbi looking at nsa and nsa is looking at cia and et cetera, et cetera. the worst thing that happened, ladies and gentlemen, aside from all the speculative nonsense is they have been written up and classified. they used the program to spy on their girlfriends or wives to see if they were cheating and they were punished for it. it all came out. really? i'm not minimizing, not saying it's a good thing, but that's really horrible abuse? worthy of putting a thumb on the scale of balancing liberty and order. that's ridiculous. nothing like that happened. nothing like this is likely to happen.
now day nadine probably correctly noted that there are some people deterred by this age of massive surveillance. that the government engages in and it adversely impacts their speech. and i'm all in favor of having the exercise of our protection of associational speech rights. i litigate a lot and i get it. the question is, people have unreasonable fear about something, like vaccines, 20%, 30% of americans beav that vaccines kill and it's not vaccination. it's an absurd view. should not be indulgent and overcome. vaccination is good for you despite some risk. so it has surveillance. i have no doubt that there is some self-censorship. that's not reasonable and we should have a debate that points out why it's not reasonable and gets people comfortable with the degree of government involvement. the funny thing to me and i do a lot of regulatory law, the
government is far, far more able to hurt individuals and companies in spaces that have nothing to do with terrorism. uncovering alleged health care fraud, environmental violations or security violations. i'm not an anti-government nut, but you government cannot be clumsy. the government can be repressive, individual officials, and vindictive. that's why we have laws that go after officials at the state level that have done it. far worst things happen and we are not touching today. the counterterrorism and national security is so heavily regulated and sites level on political accountability. both in the executive branch and congress and judicial. that -- it's good. i'm in favor of bolstering a little bit more and having more detailed briefings and having members sign the piece of paper
testing. that they've been briefed so we don't want memory failures. i'll try to be bipartisan about it. it's good, politicians, you have a sensitive classified briefing about surveillance effort you heard about it, if you don't like it, say something now. if you're not saying something now, put your john hancock so six months or six months laterer you don't say i didn't understand it. that would be a good thing. it's good. they have no problems fundamentally and one final point which is both matter of policy and law. the judiciary should be more involved. it makes no sense policy-wise or constitution-wise. i've it's not a council. the judicial role is essentially signing off on applications, that's it. they are not supposed to. the warren commission to investigate this or some other
commission to investigate that so you can have a chief justice participating in private capacity not as office of the u.s. and then judges and my good friend loves to write about national security. sit on some commission one day. that's not what they do. i would submit that even today is probably operating beyond and remit when they pass judgments on programmatic components of the national surveillance efforts. far removed from approving warrants, but doing more of that is a bad idea. let me tell you, the constitution aside, in general, framers were very smart. having the judiciary participate in something that isn't judicial doesn't do any good. it only gives cover to the two political branches and only diffuses responsibility and accountability.
they have the executive and the are accountable for what it does or oversees. it comes from both critics of surveillance, metadata collection and as well as support. sign on it. who cares? they didn't sign on an article-free court. nobody thinks they are in the rise of federal judges. let's not sort of idealize the notion that if we put a bunch of judges in there it will make it better. the bottom line is there is no fundamental problem and everything is fundamental fine in the space and we should have a serious education campaign that tells people that the problem -- i mean -- one final point. what i don't understand for the life of me, we live in an age where people almost are happy to expose their inner most thoughts and private observations with twitter and
this and that to a cast not only to your closest friend, their bff, but hundreds of people who submit all sorts of information to commercial entities that get credit and goods and services and various benefits. and there is regulation there. but do it as a price of existing in a modern world of doing well. i heard some people who live in the woods and don't do it but it's i distinct minority. for the life 0 god, why are people much more comfortable doing all of that in a situation where there is a lot less oversight and regulation and opportunities for abuse. there definitely abuses every time there are data breaches and whatnot. much worse than this thing for the people who are spying on their girlfriends and wives. why is this different? the answer would be the government can do worse things if they learn something than your local wal-mart. you have to be reasonable. the government could do worse things, but have they? what's the pathway?
what's the avenue? they need examples in the last since 9/11 or even before 0 any bad things happen. the answer is zero. thank you. >> i radically disagree with the last conclusion the answer is zero. the answer is, by my lights, every single person in this country. more important than my lights are those of federal judge richard leon here in the federal court for the district of columbia. again, a respected conservative who granted injunctions against the nsa's indiscriminate program because he concluded that the mere existence of this program even without independent abuses,
of its intended purposes, the mere existence and use of it against all of us innocent citizens who are trying to communicate online was itself an abuse of the constitution. as he said, i cannot imagine a more indiscriminate and arbitrary invasion than this high-tech collection and retention of personal data on virtually every single citizen without prior judicial approval. surely such a program infringes on the privacy that the founders enshrined in the fourth amendment. indeed, i have little doubt that the author of the constitution, james madison, would be aghast. for anybody who is a student of american history and constitutional history, we know that above all else what the framers detested about the british rule and british tyranny was the so-called ritz of
general assistance that gave precisely purported to authorize officials to engage in indiscriminate survey license. bay the stand arizoards of the s this would be trivial innovating physical space and rummaging through your papers as many people have commented. james madison and others would have rolled over in their graves if they could imagine the infinitely more intrusive, pervasive, indiscriminate surveillance to which all of us are subject every single communication and thought and every single association and financial transaction and health information and the full treasure trove that judge leon found fit to find unconstitutional. however, there has also been, specific abuse even beyond the
secretive, at best, deceptive, at worst, existence of the program. as david does what many do to assert it was subject to oversight by other branches of government. how meaningful is that oversight? given the shroud of secrecy and dishonesty to which it was cloaked. the most notorious example of which being director of national intelligence, james clapper, testifying before congress in what he later admitted was a bald-faced lie, that this program was not going forward. he first retracted and apologized by saying that was the least untruthful answer i could give, and later he retracted further and apologized for having lied. there cannot be meaningful oversight without truthful
information. david, from one of the pieces that you wrote, recently, i think we agree on this that, for the sake of making congress itself accountable and helping congress to make the surveillance and the executive branch authorities accountable to we, the people, there should be much more information sharing back and forth about this. in terms of the supposed control that was being imposed by the super secret one-sided fisa court for intelligence surveillance court that court itself is hampered by the one-sided nature of the proceedings and even the limited amount of the checks that the cost, which has been criticized for being a rubber stamp for every request for surveillance authority, it's been heavily criticized because it is
is so strongly oriented in terms of the judges who have been appointed to it. people with prosecutorial and law enforcement background. especially telling that even that court, even without hearing advocates of privacy and civil liberties, even without having judges who have backgrounds of advocating privacy and even that court has strongly critiqued and sanctioned the nsa for not to put too fine of a point on it, lying to the court about what it was doing. let me quote a couple rulings that have come to light as a result of snowden's disclosures that led to freedom of information act efforts by the aclu and others. i will quote a ruling from the fiske judge reggie walton, the court imposed some trivial, not
at all sufficient by standards that i laid out, but minimumization procedures to end. the indiscriminate sweeping nature of the surveillance. and here's what the judge said. he said nsa engaged in systematic noncompliance with procedures over the past three years going back to the inception, the very inception of the program, in 2006 and had also repeatedly made misrepresentations and inaccurate statements about the program to the fisk judges. consequently, judge walton concluded that he had no confidence that government was doing their best to comply with the orders and imposed a six-month sanction. nonetheless, the record of failure to comply even with the limited controls that were imposed by the fisk court persisted.
so that brings us to another angry order from a fisk judge in this case, presiding judge john bates, in october 2011, he found that the government had misrepresented the scope of targeting of communications. he said, quote, court is troubled that this is the third instance in less than three years in which the government has disclosed a substantial mis representation regarding the scope of a major collection program. so much for the lack of abuse and supposedly so much for the effective oversight supposedly. now to turn from an area where we disagree to an area where we disagree, i will turn to where we agree at least in part, to the first point that david made and that is the seriousness of the threat to national security that this country
faces. i take those threats extremely seriously as a philosophical matter and as a practical matter. i think it is noteworthy, however, that going back to 2013, our top national security officials have emphasized as the number one threat, the number one national security threat that our country faces is is, it is in fact threats to cyber security. cyber threats, i'm quoting from an article february 12th of this year, reporting on the testimony that the director james clapper provided to congress on the annual worldwide threat assessment of the u.s. intelligence community and he
was accompanied in the congressional hearings of other top current officials of the intelligence world. they deemed cyber threats as the top global threat facing the united states. which is exactly why you see this constellation of past and current national security counterintelligence and defense experts saying that if we allow the government to get back doors to communications and to engage in excessive communication surveillance, that is feeding what is the number one threat to our national security, far from making us more safe. it will, in fact, do the opposite. i also have to say that in terms of in addition to the government's misleading of the
american public setting up in secret a program that violates the most poor constitutional principles, not to mention legal statutes -- and congressional statute in addition judge leen repeatedly held that the mass nsa program violated the fourth amendment to the dungs in the second circuit federal court of appeals, based in new york, in a lawsuit that was brought by the aclu, unanimous panel of that court concluded, without even reaching the constitutional problems that the mass nsa surveillance violated congress' statute. the relevant section of the patriot act. even members of congress that called themselves the lead authors of that section said it was never our intent. certainly the language doesn't say it, and it was never our
intent to authorize this indiscriminate surveillance. double whammy unlawful, violating the federal statute and the u.s. constitution. beyond those abuses that consist of violation of law, violation of our rights, we also have a problem of lack of government competence to protect us from hackers, from cybercriminals, from even cyberterrorists. i'm concerned on a level of competence as well. would we call this an abuse for the government to act incompetently or neglectly? it bothers me whatever label you put on it. just in 2015 alone, the federal office of personnel management was hacked to the tune of 22 million personal records. we are talking one year. last calendar year.
hackers released and beyond government the private sector has been vulnerable here and made all of us vulnerable. hackers released 32 million accounts from ashley madison, a site none of you is familiar with so let me explain. it facilitates adultery and hackers infiltrated anthem. the irs and even the director of the cia. even without intentional views, we are vulnerable as a result of negligence. i guess i have to wrap it up. let me just end with the question. david says that he thinks that the standards that are imposed under u.s. constitutional law and international human rights law before the government may engage in surveillance are too strict. i would like to ask him what standard he would advocate instead. surely, he's not going to give the government an absolute free
pass with no justification at all to engage in violations of both privacy and security. thank you. >> i will be very brief. first of all on the law, complicated area, but let me assure you that the fourth amendment does not mean what nadine and some of our colleagues say it means. in order for the fourth amendment to apply, and there serious disputes to whether or not a warrant is required for any government acquisition of information which have reasonable expectations of privacy. reasonable expectation of privacy. i'll explain in a second what it means. or is it own the case that you have to obtain a warrant with the information that is or may be used for prosecutorial purposes. aside from that interesting debate, it has to be something that has case law dealing with
words like plain sight doctrine. if you put out information in the public domain, you have no reasonable expectation of privacy. you may have expectations of privacy, but it's not reasonable. it has been brought out over years and decades like some cases, foolish people, should not be cultivating drugs. don't put a freaking cannabis plan in your window where it's visible from the street. when the cop walks by, he does not need a warrant. it's in plain view. okay? the same thing happens, by the way, when it's interesting to me when how little people understand, i'm afraid, nadine, how much stuff get as choired in other context. he can have a third party subpoena by the most junior state prosecutor investigating something have to do with where you run your nursing business is going to get
in and get all of your e-mails, all of your service providers, and get -- now the dispute's about that -- but they're going to read all of that stuff and it turns out from e-mails you're planning a bank robbery, they're going to get you, even if it's not the purpose which it was obtained. happens every day. okay? lots more acquisition by the information. by the way, the service provider goes up in cloud and other places, it ain't a legitimate expectation of privacy act. we can debate back and forth. but something you need to realize. look, nadine is more of a tea party person than i am, government is a clumsy beast. it does noeft most things not very well. the degree of criticism that nadine referring to fiske opinions, which i'm familiar with, is nothing compared to, i can give you 100 cases where
this circuit and that district court judge, the department of agriculture, okay, and department of transportation, and epa, and fcc and every other agency in affirment for lying, for cheating, for not doing this and that. people get prosecute and fine and go to prison. and the judge is participating in the interagency process. they're not oracles of delphi, they are expressing their views. the statutes are very complicated ladies and gentlemen. i've not done it many years but back in my days in the white house, i used to deal with some of that. they tax the minds of most brilliant lawyers, on all sides, okay? people disagree about it. so the fact that fisk judges disagree whether or not, you know, nsa complied with some minute mimization order or act
questi acquisition order ain't -- i'm not saying they were wrong, i don't know the details, but anything unusual is not a sign of a horrible practice going on. two final points. she is not mentioning anybody who was punished incorrectly and suffered. because there's no such examples, they don't exist. and again, compared with the normal regimen of our great government, which i love, no administrations and doing things we can do, the national security area is pretty done clean and pretty vile. if you don't like that, should you go support tea party or donald trump or turn everything upside down because, believe me, the fda and federal document administration and vacuum cleans records from pharma companies with a lot less using
administrative subpoenas and a lot less oversight and a lot less standard for dissemination and firk doesn't do energy companies. if you don't like this, and the essence of reasonable risk assessment is to look at things across the board. can i say i don't like this? three things present a greater danger. that's okay with me. the final thing about the threat, look, there is no connection i know of any technical person that tell me in simple terms between cyber threat and the kind of surveillance i'm talking about. on encryption, nadine and a agree. edon we don't need to go there. there is no connection between the government recollecting the metadata and combining it with other public data bases and precipitating potential suspects.
and bringing law enforcement in. zilch. it's a straw man, i'm sorry so say. it's a classical straw man. the government should harden it up as well as possible against cyber penetration. you have nothing to do with it. that's not an issue. the final point is this, i don't care if terrorism is number one or number two threat. it's a threat. the government owes us if nothing else to be safe from enemies. that's the number one function of government. the only game in town, we have a surveillance. we do not have, as in the cold war, we do not have our agents penetrating the organizations. it's impossible. any intelligence will tell you that and talk about why. if we don't defect, we don't have those guys defecting from al qaeda or isis. sadly, no one seemed to be that driven by money. they believe in really bad stuff. by the way, we don't interrogate
folks much these days at all. that's not politically correct. no matter what the standards are. the only damn thing we have to get at them is surveillance, okay? if we don't have that, we have nothing. might as well wait until we get hit and the next time and the next time. again, there is no problem. there is no crisis. i heard nothing that suggests otherwise. thank you. >> i know i don't get a response, but i would like to give david a little present to honor his position. he has the fringe benefit of having a picture of president obama on it. it's a little tin which shows president obama with a headphone and a listening device thumbs-up saying nsa approved and they are lemon flavored eavesdrops. so enjoy. think of me when you suck on them, david. >> i will put it in my desk.
>> well, i'm sure everyone has enjoyed this and learned as much from this as i have. i've been looking forward to this debate for a long time and i've learned a great deal. we have -- we don't have a lot of time. i'm going to take the moderator's prerogative and ask the first question, though, which goes as follows -- if i were a martian and i just landed in the united states and i wanted to find out -- i wanted to find out something about nadine or about david or about some class of people who might be suspected terrorists or really about anything, i had om in additions about how the world works. i don't think i'd go to the federal government to find out. i'd go to any number of private companies whose internet
business model is surveillance plain and simple. they surveil. they collect information. they retain information. they use that information. they know far more about practically any of us than i'm sure the federal government does. that what the internet has done is changed -- one of the many thing that it's done is it's changed the way information is used. as david, you mentioned several times, the government's very clumsy. they're not very good at a lot of this stuff. the private sector's really really good at that, and they probably if they wanted to monitor this guy on san bernardino and you told them, well, tell us who's been going to different rifle ranges and different things, i'm sure somebody knows that. could you -- and yet there is an entirely different role of government, as both of you said. the government is different from a private company or private entity.
and yet i think the relative scope and control of information that the government has relative to the private sector, i would say 30 years ago the government probably had far more information about individuals than the private sector does. today i think it's vastly the other way around. and i just wonder, how does that enter into thinking about surveillance and -- >> can i go? >> sure. >> you are making my point. we all live in a fishbowl. it's not comfortable, but let's be reclusive and run into the woods. if we don't, let's be reasonable about it. again, one of the things that bothers me is people do not assess a given concern in the continuum. to put it somewhat tritely, yes, i worry about this threat, but it's not below my fear of being eaten by piranhas which means it isn't very high given where we live. it's not even hiring a private surveillance company, you can go if you are knowledgeable and you are a young person you can go and get more information about
any of us today than most of us realize. you can get unlisted phone number. you can get mortgage documents. you can get a picture of your house. you can -- it's all there. since we accept that, we have to look at what the government can do as part of the same broad narrative of our tolerance for the lack of total privacy. and then you -- i understand that the government can do worse things to you. not necessarily. private sector can do horrible things to you, believe me. you have to look at why is it being done, what the risks are and what are the safeguards. and once you put it in that perspective, there's nothing to worry about in this space, so that's one of my lamentations. >> this is one of the reasons why i think the tea party would not welcome david, despite your endorsement, which is as a civil libertarian but libertarian i do
believe that government can have a positive role to play precisely in protecting our liberty and our privacy from violation by powerful private sector entities which are not subject to constraint under the united states constitution. so, the aclu and many others have joined in supporting legislation at every level of government, regulation, at every level of government to constrain the power of the private sector to collect, use, misuse, store, et cetera, our private data. now, and, in fact, very recently the fcc did announce that it was moving in a direction that i think you've criticized, harold, forgive me if i'm wrong about that, of -- >> you're right. >> i'm right.
subjecting to regulation internet service providers that in terms of their ability to reduce our privacy to misuse our information. on both subjects, government and private sector ability to invade our privacy, again, i am not an absolutist and i don't know anybody who is. what we are asking for meaningful constraints in the government sphere, that means that the government has to have, as the constitution demands, individualized suspicion. there has to be independent oversight beyond the executive branch of the government itself through the independent court system. in the private sector, i think one of the most important constraints is transparency and consent, that we should have an opportunity as consumers to -- we should have to opt into
affirmatively any situation that is reducing our privacy, and it should be a meaningful option. we should not have to give up being denizens of the online world. choose between that and privacy, that is not a real choice. >> we have time for just one or two questions. let's start with the gentleman in the back. >> sunshine press. in the political aspects of this, why is it that conservatives who generally believe in what they used to call strict constructionism and now they call originalism, that especially with regard to the tenth amendment, the constitution reserves to the people in the states all power not specifically granted to the federal government, why is it that conservatives see
in that constitution or are inclined to see in that constitution authority for the government to do things that aren't spelled out in the constitution? and why is it that liberals are inclined to in general go along with increased government activity but not when it comes to surveillance? >> well, i suppose the question's addressed to me, at least in part. but i would say with respect, i fancy myself a serious constitutional lawyer, that's my life, my vocation. i don't understand the question. the government, i understand limited enumerated powers. to go on, i understand federal ism, believe me, i do. but the government clearly can acquire information in pursuit of a variety of purposes that are within the legitimate domain of federal and state government. the question really here is how, not whether. and how applies to both the federal government and the states.
and any reasonable reading of the fourth amendment suggests the cannabis planted in the window home analogy, that if this information ain't the one which is reasonable -- if you take a machine gun and erect it on your lawn, you cannot be very upset that the local police would come and, you know, if there's some kind of ordinance is against it, federal law on the books against machine guns, would probably give you a hard time and arrest you, okay? because you did it. you have a choice of whether or not to put a cannabis plant in the window or put a machine gun on your lawn. you have a choice to whether or not give your otherwise private information to search. metadata. metadata ain't private at all. it's not information you have on your own. it's information generated by your service provider in order to bill you, okay? it ain't private. certainly not private to you. it's a business record of your service provider. with all due respect, the notion
that the framers or madison would be upset, but if you walked down your local pharmacist store in boston and ordered, you know, some eyedrops in the presence of not only your pharmacist but five other people, your neighbor's standing there, there's private information which a warrant is required. final point, what i don't understand is the idiosyncratic thinking. what i'm talking about is intelligence acquisition on the national, international level that happens over time in local police work. very briefly. i know we don't have much time. a local cop or detective goes and says, i think something bad may happen. let me kick the tires in the neighborhood. let me ask you who heard what. strange people driving around. maybe lots of money passing hands. maybe this. maybe that. you can assemble that information. you don't need probable cause for that. that's not a warrant. you're talking to people. you're looking at things in the public domain. fundamentally, ladies and gentlemen, all we're talking about, nadine and i, is doing
the same type thing in a different sphere for electronic surveillance and that's it. and why is it acceptable to go in the local bar and say, you know, have you seen anything strange happen. you heard people talking about robbing a warehouse. who were they? did you recognize them? that's all kosher. but doing the same type of data development through surveillance -- electronic surveillance and you can kick the tires on specific people you identify is somehow prohibited by the fourth amendment. it cannot be. >> well, i disagree with most of the details that david laid out, but i'm going to try to go to the core of your question. your name was edward, right? which is, why do so many conservatives depart from the text of the constitution and the original intent and so many liberals do likewise depending on what the particular issue is, rather than consistently trying
to honor both the text and the original meaning or understanding of the constitution. and i have some comfort to offer you, which is that on a number of very important recent privacy cases in the united states supreme court, before justice scalia died, when the court had nine contentious individuals who would often split 5-4 and being even more fragmented, we've had a number of recent decisions in which all nine of them came down very strongly in favor of privacy and strongly enforcing fourth amendment guarantees. the most recent example being a case called the riley case from 2014 involving cell phone searches. and strikingly all nine of them held that it was unconstitutional to extend to
the digital world a judge-made exception to the fourth amendment that had been made for seizure, searches and seizures, pursuant to an arrest when basically the law had been that aside, if somebody's arrested, you can seize everything that that person has on his or her body. and the court said, no, we are not going to extend that exception to cell phones, given the wealth of private information that's available on those phones. and i thought it was really remarkable that all of them, from the most liberal to the most conservative, came down to really respecting the words and meaning of the fourth amendment. i'm going to read you just one line that they agreed on. we cannot deny that our decision will have an impact on the ability of law enforcement to combat crime. cell phones can provide valuable, incriminating
information about dangerous criminals. privacy comes at a cost, but privacy is protected by the fourth amendment. so, take comfort. >> and i just add one thing very briefly. the irony here is -- i don't disagree with this decision. and i understand what they were doing. let me assure you that once government gets somebody in custody, local police most likely, it's a fool's errand to get a warrant. in fact, i dealt with a number of cases where we're actually fighting to suppress a warrant. getting a warrant is so easy peasy as many would say it's not funny. the notion that there's some great comfort to obtaining a warrant is just not true. the problem, again, arises not in the context of somebody's been taken into custody and, okay, so you're not going to automatically on your own go search for his or her cell phone. you're going to go get a warrant
from a magistrate, fine. two hours, three hours tops. it's not knowing out of the millions of people out there which ones deserve closer scrutiny by law enforcement. that is at the heart of counterterrorism. okay? it is nothing to do with law enforcement scenarios. mechanics of law enforcement we can afford to be far more punctilious, go way beyond fourth amendment -- which by the way, again, very lenient. i'm all in favor of tougher standards for warrants and subjecting individuals who submit warrant applications, the little frisky, to personal liability to state and federal officials. all in favor of it. it's a good thing even if some bad criminals go. it ain't the same in the context of counterterrorism because the only way you can get at the people, unless you want to wait until they strike or you get lucky because you run into somebody before they pull out a gun and blow themselves, the
only way to do it which one out of the millions -- hundreds of millions of people need to be looked at more closely. there's no other answer. now, i would ask nadine, i know we don't have time, i keep hearing, well, i'll balance it differently. how would you do that? how would you know who needs to be investigated? you don't. you don't. unless you do that kind of surveillance. >> well, let me just point to a long history that has been called the golden age of surveillance. if you ask anybody now in law enforcement or counterintelligence, are they better off now than they've been in the past. they would say yes, they have an infinite amount of information about us, and have been successful in foiling many counterterrorism plots, not to mention other law enforcement problems, through the use of the techniques that are completely consistent with
the fourth amendment. indeed, right after 9/11 i remember former fbi director william webster was -- who was opposing the extended government surveillance power under the patriot act, even before we realized that the government would in secret extend that power even further beyond the plain language of the provision, he said, look, you know, when i was fbi director, he was also cia director, we were able to foil and he listed the number of plots through using good investigative techniques. we did not need to jump over -- paraphrasing him very closely -- we did not need to jump all over people's privacy. in fact, the 9/11 -- the bipartisan 9/11 commission which looked in to what caused the terrible tragedy on 9/11, what steps could be used to prevent another such tragedy, that kind of analysis was not done before
the patriot act and this expansive surveillance power was rammed through with almost no debate, almost no hearings. but after the fact they looked into it, and guess what, that bipartisan commission did not say we need more surveillance power. no. they flagged a problem that i thought, david, you indicated you might agree with, which is not that we can't gather the information but we don't have the capability, we're not investing sufficient human and other resources into analyzing this huge mass of data that we already do have. so, yes, we can have effective protection against terrorism. nobody wants to on be vulnerable to terrorism, certainly not me. >> respect, this is not true of the 9/11 commission report, talked to great length about the so-called wall which is one specific manifestation of the restrictions, data sharing, that
show rooted in obsession with privacy. nadine, i respect you greatly, but can you in 30 seconds say how you would find someone like mr. farouk. forget all of the stuff, how would you find another mr. farouk, unless you look at the communication streams. not content. unless you look at my electronic footprints in the snow to see what are the telltale signs bringing the best cognitive analytics possible, and if you massage the data you can come up with enough parameters that show you a deviation above the baseline. it doesn't mean the person is a terrorist but it's worth investigating. how would you do it? >> you would do it as the director of national intelligence has said, with individualized suspicion. >> how would you know? >> and data experts have said that the data mining that you are advocating, david, is junk science, that it is not an effective way. >> how would you know about the suspicion because a lot of the people lie low until they
freaking attack, what individualized suspicion you going to have? will he go into a bar and start bragging that he's going to kill people. some will but many will not. how will you get the individualized suspicion in the modern world? how? >> well, i could stay here all day. unfortunately -- >> i was hoping an audience member would get to ask a question which is why i self-censored. >> i actually promised our speakers we would be done 11 minutes ago, and i know, nadine, you've got a plane to catch. please join me in thanking our speakers today.
tone on the communicators while visiting a technology fair on capitol hill, we spoke with congressman fred upton from michigan chair of the energy and commerce committee and bill schuster of pennsylvania, chair of the transportation and infrastructure committee. we interviewed interkn eed inno ford, about technology, spectrum issues and the upcoming spectrum auction. >> look where we are today in terms of communication, job creation, we're working on a major bill, working on legislation that we've already
passed but we're going it see fcc free up more spectrum which can enable these devices to be built, used, communicate. we're on the run. >> putting in legislation encouraging states to start to make -- take a look at how do you build a road in the future? dealing with companies today what do you need for your technology to work even better? >> from the very first generation that we launched almost a decade ago, making your device as useful as possible in a car in a way that lets you keep your hands on the wheel, eyes on the road and for us that's about voice technology. >> ford understands there's great spectrum. we are working with our colleagues, working with colleagues at ntia, at the department of transportation and the federal communications commission. >> watch "the communicators"
tonight 8:00 eastern c-span2. >> this sunday on q&a, columnist and slate magazine founder michael kinsley talks about "oldage a beginner's guiding requests living with parkinson's disease. >> parkinson's a brain season, that's a nonsensical question. but, what i really meant, obviously, was thinking, is it going to affect my thinking? and thinking is how i earn a living. so that become pretty important. and i asked this neurologist what's going to happen, and he says, he was trying to tell me it wasn't such a big deal. he said, you may lose your edge if -- as if that was just nothing.
i thought, gee, my edge is how i earn a living. it's why i have my friends, maybe why i have my wife. >> sunday night at 8:00 eastern and pacific on c-span's "q&a." >> on the agenda this week, the house, $610 billion pentagon poll and i programs bill, also work on military construction and veteran spending and emergency spending to combat the zika virus. see the house live on c-span. also, in the senate, judicial confirmation, a vote on judicial confirmation, military construction and veteran spending as well as money to deal with zika also on the schedule in the senate. see the senate live on c-span2. former secretary of state james baker and former national security adviser tom done lynn testified before the senate foreign relations committee regarding u.s. leadership in the world.
senate foreign relations committee will come to order. we are excited about the hearing we have and we thank both the witnesses for taking the time to be with us. i don't think this hearing can come at a better time when the nations are focusing on the place in the world. obviously the presidential races that are under way will heighten as time goes on. they had to deal with the daily crisis and the foreign relations committee is removed from that and should be a place where we look at those activities and where we will be in the world. this is a step in the direction. again, i know we are all thrilled to have you both.
whey would love to hear is the thoughts with our current prices that we have. everything from russian aggression to what's happening in the little east to terrorism. the north korean rattling and the south china sea. second, in light of these events, it's my hope to explore what core u.s. interests are. that's something that we don't spend enough time focused on. we would like to see what would be more effective. whether it's the military or influence or trade or multilateral organizations and alliances. what's the right balance and the
cost and benefits. i would love to hear how they feel at home about the ability to find a solution for the liabilities that we have. i know that both of you are deep policy people and made great things happen for our country and careers. you have to have a little politician in you to do what you do. you are aware of where the american people are today. they are wondering how much we should be doing overseas a lot of focus on what should be happening at home. they are topics i hope we will
address. i thank you both for being here and i will turn to our ranking member. >> thank you very much, mr. chairman. i appreciate you convening this hearing and i want to thank secretary baker for the incredible years of public service. to me, this is a real student and we thank you very much for being here today. this hearing is titled america's role in the world. we have enough challenges and there is certainly a need for u.s. leadership globally. i see our military and the best soldiers and command. the best military equipment, but to me, the strength of america and the influence is in our ideals. what we stand for. we are active in that and the founding principal that security is more than that & to me they
will never succeed. when you look at other countries flexing their military, to me they will never succeed in accomplishing a more peaceful, stable world. they don't have the commitment towards democracy and good governance. i look at russia's fen gaugement, what china is doing in the seas. i look at north korea. they certainly are not countries that are taking on international responsibility for a more peaceful and stable world. so what are the pillars we should be using? what are the tools, as the chairman said in order to accomplish our objectives? i look at this and come up with pillars we need to underscore. one is we need to work to form coalitions and partnerships. that's not easy.
americans aren't always patient. it is very important to work with other countries of like objectives. that means we have more credibility and more effectiveness in accomplishing our results. i think we need to continue our strong demand for nonproliferation of weapons of mass destruction, particularly nuclear weapons. the military should be used only when every other option has been explored as a matter of last resort. this one is not a surprise to my colleagues. we need to prioritize and support good governance. democracy and basic human rights, transparency, anti-corruption, freedom of the press. the ability to oppose the government without ending up in jail. freedom of religion, the status of civil society is a good indication of how a country is doing. a government that protects its people. when leaders fail to provide good governance we see the
consequences. we see the consequences in conflict where innocent people are put at risk and we see the flood of displaced individuals and refugees. we see a vacuum which is a breeding ground for radicalization and recruitment for terrorist organizations and we pay a price for that. two examples. we are all concerned about the fate of ukraine. clearly the culprit here is russia and its interference in the independent country. we have spoken out and we have gotten europe to work with us to try to isolate russia. ukraine has to establish good governance. they haven't been able to do it today. that will be critical for survival. in syria, we know that the assad regime cannot have the credibility. it doesn't represent the people. as a result we have not only civil conflict but breeding grounds for isil. to me, a common thread is woven through much of the world's ills as a crisis in governance.
and a willingness to ignore the rule of law. i look forward to the conversation we are having today with two of the real champions in the history of america on foreign policy. >> well, as we all are thrilled to have you, secretary baker is, to me, a model of public service. someone that i have looked up to for a long time. i appreciate him taking his time to be with us today. i know he served in the public arena off and on multiple times with great distinction. tom donalin is someone i have gotten to know over the course of the first few years of the obama administration. while i don't know him as well, i know he's highly esteemed. we could not be more fortunate than to have the two of you here today. if you could, if you would summarize your comments in about five minutes, we are certainly not going to cut you off. i have read your written
testimony. without objection it will be entered into the record. you can summarize, if you would, in about five minutes or so. we look forward to ask questions. if you would start, secretary baker, i would appreciate it. >> thank you, mr. chairman. it is a pleasure to be here before you -- >> microphone. >> -- and other distinguished members of the committee. it is a real pleasure to me, needless to say to be back before the committee that i appeared before so many times when i was saecretary of state. i have been asked to be brief so we can spend our time talking about the items we have articulated. let me talk about america's current role on the world stage, suggest and approach on u.s. foreign policy that i think is best suited for the country. let me begin by putting america's place in the world today into perspective. more than 70 years after the
conclusion of world war ii the united states remeans the strongest nation in the world. not just militarily. we have a dynamic and resilient economy. we have the most powerful military in the world. we have the widest array of strategic alliances ranging from nato to ozeon. do we have problems? indeed we do. domestically the economy continues to sag. internationally, we are losing some of the respect as a global leader that we earned over the course of decades. as the current presidential election is demonstrating, americans are losing faith in institutions from washington to wall street that evaded our advancement over the years. at the same time much of the rest of the world, countries like china, brazil and india are catching up with us largely because they are adopting our paradigm of free markets. that should not be viewed negatively, in my view, but as a positive trend because it is
helping hundreds of millions of people rise from poverty. still it's my view, notwithstanding the fact that we have slipped a little in recent years that we should be the world's leader for the foreseeable future. we should accept the responsibility and not shrink from it. if we don't exercise power, others will. we have too much at stake in the world today to walk away from it, even if we could. other countries depend upon our leadership. this is most obviously true of our allies in western europe and east asia and elsewhere. frankly, even countryies that ae sometimes anything but friendly seek our engagement. does that mean we are perfect? world war 1, world war ii and the cold war the united states
defeated imperialism and total yannism. how should the united states engage in foreign policy. how do we formulate policies that best serve the united states as we begin to approach what many consider to be the end of the uni polar era. first of all, i want to say in my view and this has been my view throughout my public service back before i was secretary of state. international leadership doesn't involve a choice between sending in the 101st airborne or doing nothing. we can lead politically, diplomatically and economically without putting american boots on the ground. i believe that the united states should chart a course based on a paradigm that i would refer to as selective engagement. this approach would continue the internationalism the nation has embraced since 1945 would recognize that the united states
has core interests in the world and that we should protect them. at the same time it would also acknowledge the reality that our power is limited. using selective engagement as a blueprint, we can identify america's vital interests in the world and advance them using all of the tools available to our foreign policy including our many strategic alliances, our economic clout, our diplomatic assets and as a last resort, our military. what are the vital interests? they range from combatting international terrorism to managing the emergence of china as a global power. from stemming the proliferation of weapons of mass destruction to expanding free trade. the approach i suggest doesn't fall easily into traditional categories of foreign policies. that is either realism or idealism. it would and can contain the best elements of both.
it represents one of the most distinctive national characteristics. we are, after all, a practical people. less interested in ideological purity than in solving problems. the practice of selective engagement should be informed by what i would refer to as a pragmatic idealism. while firmly grounded in values. selective engagement would understand and appreciate the complexity of the real world which is a world of hard choices and painful trade-offs. this is the real world in which we must live and decide and act with due regard, of course, for our principles and our values. it would require that there be an overriding national interest at stake, particularly if any military action were contemplated. such a balanced approach, mr. chairman, i believe, can help us avoid both the cynicism of
realism and the impracticality of idealism. it promises no easy answers or quick fixes. such an approach does, i am convinced at least, offer our surest guide and our best hope for navigating this great country of ours safely through this prekashs period of unparalleled risk and opportunity in world affairs. i look forward to addressing your questions. thank you. >> thank you very much fr the opportunity to be here. it is a privilege to be here next to secretary baker, one of the most honorable and influential public servants of our time. the title of one of his books quotes advice from his grandfather, work hard, study and keep out of politics. we are fortunate he didn't heed the advice, in my judgment. the world today is characterized
by an unusually large number of unstable and volatile situations. it is a level of volatility we have only seen twice since world war ii. i think the volatility and instability is rooted in four broad political trends i will describe briefly. first, there is a systemic breakdown of state authority in the middle east. indeed in the years since the arab revolutions beginning in early 2011 a number of states have become out and out failed states from libya to yemen to syria and others are in different stages of failure. they have lost the ability to control what goes on in the borders to maintain a monopoly on the use of force. as a result, vast ungoverned spaces exist across the region from libya to pakistan creating power vacuums and paving the way for the rise of groups like isis. these upheavals put pressure on important u.s. partners and fuelled an unprecedented migrant crisis in europe threatening the
integrity of the e.u. the primary cause in my judgment is a failure of governance on the part of arab regimes over the period of decades and ranking member, you described this, i think. this is the root, i think, of what's goeng on in the middle east today. profound failure of governance. the second trend is reher jens of great power competition. for roughly 25 years after the fall of the berlin wall, the world enjoyed an era marked by productive and constructive relationships. none of the great powers regard each other as hostile or adversaries. that period has ended. it ended in 2014 when russia invaded ukraine and crimea. third, the global reaction to the profound economic and political transitions under way in china. for years china and its rise served as an engine of global growth, global economic growth. unsurprisingly then the slowdown in the china economy has had a
number of impacts. the united states and china continued to cooperate on a number of issues like climate change in iran and north korea. china's provocative behavior in the north china sea including land formations is significantly destabilizing. the united states and china have to get this relationship right. as professor alison testified on a number of occasions and noted over history the dynamic between established powers and rising, emerging powers in terms of outcome likely ended in war. this is a classic trap. in my judgment international recessions is not a subset of physics. our country's leaders on both sides through -- the last trend i will mention is the geopolitical impact of sustained low oil prices since mid 2014. the impacts have been vast. they have been substantial. they will be long lasting in my judgment. oil exporting nations that lack
significant financial reserves like venezuela, nigeria and iraq have been severely pressured. even exporting nations with significant reserves like the gulf states and russia have come under serious economic strain. in the last week we have seen saudi arabia announce a major e reorientation of the economy. some look all the the unstable environment and draw a simple conclusion. i agree with secretary baker on this. i reject the thesis that the united states in its ability are in decline. i flatly reject that notion. the idea that america is in decline doesn't stand up to rigorous analysis of our national balance sheet of strength. no nation can match our comprehensive set of enduring strength including a resilient, diverse economy, a unique global network of aliepss, unmatched strength; culture of innovation and a long record of international leadership. the extreme pessimism we here and the lack of appreciation of u.s. strengths is not only
inaccurate, but dangerous. it leads to poor policy choices. i will close by listing four or five challenges for the next president. first, economic growth. there are not a lot of iron laws in history. one of them certainly is no nation can maintain its diplomatic or military primacy without maintaining economic vitality. the economy has recovered since the 2008 crash but continued in security -- economic insecurity for retrenchment which would under cut global leadership and weaken the economy. there are a number of things we can do including investing in national infrastructure, defending our edge in r & d and supporting our long-term demographic advantage through a sensible immigration policy. the bottom line is the most important national security challenge for the next president is to maintain and extend economic growth and prosperity in the united states. second, terrorism. i'll finish up here.
we have reduced the threat from al qaeda. we are pressuring isis in syria and iraq. the overall terrorist threat evolved and metastasized. i think the terror threat entered a new and dangerous phase. isis is moving to external focus with respect to the threat. it is expanding into other regions and attempting to carry out attacks around the world. the return of foreign fighters to europe and i a tacks on paris and brussels highlighted how unprepared europe is to address the threat. despite the nature of the terrorist threat european responses remain cloistered behind borders. my own judgment is that the failure of europe to successfully deal with the terrorist threat in terms of information sharing, intelligence sharing, securing borders, putting appropriate resources against the problem is a clear and present danger to the united states. third, cyber security. every year americans rely on goods and services connected to
the internet awhich are a boon o the economy. president obama asked me to chair a national commission on enhancing national cyber security. we'll put our report in december. it is a transition report for the next president with respect to a look at this problem for the next five to ten years. next is asia. my judgment is that the next president should build on president obama's rebalance to asia. our alliance system there is rock solid but our allies seek greater engagement in a region economically, militarily and diplomatically. ratifying the tpp, the economic center piece of the rebalance is central to cementing our leadership in the region. last, north korea presents, in my judgment, the most serious security challenge we face in asia and the most serious proliferation challenge we face globally. north korea has undertaken in the words of one analyst a nuclear sprint seeking icbm that
could reach the united states with a miniaturized nuclear weapon. in my judgment it is on a path to be a first last crisis for the united states and allies. with that, i will conclude. i look forward to your questions. again, mr. secretary, it is a pleasure to be here. >> it is a privilege to have you both. we thank you for your opening comments. out of respect for the committee i will reserve my time for interventions. >> thank you, mr. chairman. i concur on the opportunity having both individuals with us today and thank you for your service and statements. i want to drill down on the point that you made, but also secretary baker. that is the observation of the lack of good governance in the middle east providing the wherewithal where we have now moved to failed states. admittedly there was outside interference. there was outside interference in yemen, in libya. we know what the syrian
problems. we know iran's activities. all of that has contributed to the lack of stability and the failure of governance in these countries. then this past week we had a hearing on sub sahara africa and the terrorist networks operating in sub sahara africa. it is spreading and the risk of failed states in africa is pretty dramatic. i guess my point is what should the united states be doing in an effort to try to deal with the governance structure? we move from autocratic countries that have not been able to transition into democratic countries for a while the autocratic systems were working, but long term they won't work. so is there something in our toolbox? i look at what we have available to us. our diplomacy budgets and development assistance budgets
have certainly much smaller than our defense budgets. do we have enough resources? are we using them properly? is there a better way to focus on a more consequential impact on the transition of countries, particularly in that region to a more inclusive government that can prevent the type of violence that we have seen? >> you want me to take a shot at that? i will be glad to, senator. >> sure. >> first of all, today it's less a question of what should we be doing perhaps than with a we should not have done and should not repeat. when we take down an autocrat, it's great. it's in keeping with our principles and values and on the whole generally speaking can be beneficial to the citizens of the country that he or she is imposing upon. but we need to be thinking about
what comes next. we shouldn't be so quick to come in and get rid of leaders that we don't agree with 1,000% of the time. if you look at what happened in libya, what we did there pales in comparison to what the europeans did, but we did assist. president obama -- tom will know this better than i, but i don't think president obama really wanted to do that. but he was convinced that we needed to contribute and we did. we contributed air assets. so we took gadhafi down. everybody says that's wonderful, he was a brutal tyrant. great. but you don't do it without thinking a little bit about what comes next. we have the same situation in egypt. when we bailed out on mubarak who was a wonderful ally for a long time. by the way, very good on the arab-israeli problem. so we ended up with the muslim brotherhood. that became a problem and now we have a military dictatorship
back in egypt. but at least we have stability. we have the same situation to some extent in iraq. it was good to get rid of saddam hussein, but we should have perhaps done a better job thinking about what we were going to put in place after he left. these areas that are failed states are failed states primarily because we went in there or at least in part, and upset the order because we didn't like the people that were running the show and shouldn't have liked them. but we need to do a better job of thinking about what comes next. so right now my view and with respect to, let's say syria. it may be a little bit too late. it's too bad that we didn't support what the turks wanted which was a no fly zone along the border of syria with turkey.
i don't know why we could not have negotiated with the turks, the saudis, the emirates, kuw t kuwaitis and other friends in the region a deal where we said look, we'll furnish, air, intelligence and logistics, put the boots on the ground and we'll take care of the syrian problem and won't have isis. now maybe it's too late. maybe it's not. that's what we should have done. >> i agree with your point. particularly use of the military without having a game plan that comes next. that's not what america should be investing. recognizing though long term we need more open governance. is there something we are missing in our action to give a better chance for a more
democratic system? >> well, you can't expect the emergence of a democratic system in a society that's been awe authoritarian for the entire term of its existence unless you have stability. so you should not expect it to happen if by your actions you are going to eliminate the stability that exists. >> i agree. >> it's important to stress governance as part of the approach to these problems. essentially the situation in iraq is in many ways under scores the point. situation in iraq arose because the malaki government was awe authoritarian and wasn't inclusi inclusive. we had a governance failure in the deterioration. i'm very worried about iraq today.