tv Key Capitol Hill Hearings CSPAN April 1, 2016 2:00pm-4:01pm EDT
next 20 years or something, defining the security zone. america will increasingly be anxious about an unstable golf with low oil prices. instability and i think we will see great instability and oppression in the middle east for the decades to come. on that note -- [laughter] amy: perhaps that's where we need to end. >> i have one last thing. a few days ago. one of the big takeaways from saideeting was that assad openly in the meeting that he was very eager to get along with and get a process going because before the general election in the unitedates --
states. syria has become a controversial issue. ,he presidential candidates hillary clinton has a different view than obama. but hardly anything clear. a fascinating note to end on. i'm sorry we did not get to talk more about the american election and so many other things. thank you all so much for coming today and for all the great questions. thanks. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016]
>> the council on foreign relations, you can see all of this event online at www.c-span.org. the nuclear summit wrapping up in washington today. as it happens, a missile test in north korea. testeadline today -- that came hours after the u.s., japanese and south korean leaders decided to cooperate to prevent pyongyang from acquiring nuclear weapons. it is probably likely the president will get asked about this this afternoon. live coverage here on c-span at 5:45 eastern. toronto, looking
at the global refugee crisis and how developed nations should deal with it. , louise arbor arguing in favor of an open arms policy. and mark stein will be arguing against the notion. that's coming up at some :00 tonight on c-span. c-span.tonight on senator ted cruz and governor john kasich. showcased our we student can winners. our annual competition for high school and middle school students. this year's theme is wrote to the white house. what issues do you want
presidential candidates to discuss. -- road to the white house. they want presidential candidates to discuss russian and american relations. , "russia ando america: cold snap or permafrost?" president obama: we cannot stand by when the territorial integrity of a nation is violated. if that happens without consequence in ukraine, it could happen to any nation gathered here today. for two centuries come our relationship with russia has been complicated. rivals whos been depend on each other. although we were allies in world war ii, mistrust dates from the russian revolution.
u.s. russian relations have improved with a new approach to russia. started a new has age of military aggression. latee administration in august asked the russians, what are you up to, what are you doing? they said "we are fortifying our interests there. we are just as scared of the islamic state as you are." the administration in response to this adopted this watch and wait, wishful thinking posture. >> i think our relationship with russia is one of the most complicated in the world. overs gotten much worse the past few years in large part because of russia's invasion of ukraine. at the same time, we have been
cooperating with them on very important issues like the nuclear agreement with iran. and important counterterrorism programs. forget ournot relationship is still fragile. >> he can't even play nice with putin. >> russia is lying through their teeth when they tell us they are on our side. sometimes they are fighting isis. other times, they are fighting the syrian opposition. isis fight. russia is in syria already. let them fight isis. while some approaches are completely passive, some are much more aggressive. >> i would not talk to him at all.
we've talked way too much to him. begin rebuilding the fleet. >> it is really about finding the right balance and delivering tough messages with consequences for russia when they overstepped the bounds of international norms like they did in ukraine. >> i have been, i remain convinced that we need a concerted effort to really up the costs on russia and prudent. >> we needed to make it clear to russia that their invasion of ukraine cannot stand. we will never recognize their occupation of crimea or eastern ukraine. president obama: the russian economy has been seriously
weakened. is down,nvestment inflation is up, the russian central bank has lost more than $130 billion in reserves. russian banks and firms are locked out of international markets. >> keep it off a lot more he -- he bit off a lot more than he could chew. issia's military budget small because their economy is shrinking. their gdp fell by 4% last year. ,ecause of the low price of oil which is the biggest growth sector in the russian economy. that creates an environment where he is looking to flexes muscle to get popular support at home. he is popular in the most recent polls, but not because of his handling of the economy. >> government controlled media
in russia is slamming america, claiming we are impeding legitimate interests. russia perceived this as a threat to their national security, giving them cover to continue operations in ukraine and syria. the russian press speaks positively of our recent joint progress in iran. >>[speaking russian] in conclusion, america and russia still have a precarious relationship. little force could result in russian invasion of other countries and too much could start a war. it is up to the next president to find a perfect balance. , for the try carefully result of this decision will have lasting effects on the world's future. to watch all of the
prize-winning documentaries and student cam competition, visit studentcam.org. the heritage foundation hosted a recent day long event on the role of intelligence and national security and counterterrorism efforts. speakers included foreign to defend -- former defense officials from the bush and obama administrations. they discussed embracing innovation and enhancing cyber security. a second panel focuses on counterterrorism, information collection and whether current laws can remain effective with the constant developments of new technology. good morning. welcome to the heritage foundation. we welcome those who join us on our heritage.org website. toask our guests in-house check that our mobile devices
have been silenced or turned off. that is always appreciated as a currency -- courtesy. we will host the program on the -- other viewers are welcome to send their questions or comments at any time by simply e-mailing speaker@ heritage.org. starting the program is charles stinson. he focuses on the policy issues, intelligence, criminal law, immigration and the war on drugs. --ase join me in welcoming
[applause] >> thank you very much, john. good morning, everybody. i want to welcome you to the heritage foundation for what we expect will be a fantastic day. david and i were walking back from the hill one day several months ago and thought we really need to do an all-day program explaining the positive case for the role of intelligence. we've been through this note in episode. we had the reforms to sections 215 -- the snowden episode. we had the reforms to section 215. board gave their assessment recently. we expect there will be issuance there at some point.
we thought that, given the turnover in congress and the number of staff who have come in and out of the hill, it will be helpful to put the nation's top lines in front of you to explain the role of intelligence. i'm pleased and honored to welcome all the guests today. you know who they are. we will not spend any time introducing them. i will take the privilege of introducing my colleague, david shed. he served as the dia acting director since 2014 until he recently came to heritage. he served as the deputy director for dia for four years and had of the roles at the cia, dni and international security counsel. david: it is indeed a privilege.
the opportunity to talk about the value of intelligence is why we are here today. think about questions you may have after i've exercised the prerogative after introducing our two guests and asking them their questions, what is on your mind? that is important to address. immediately to my left, he needs no introduction. general mike hayden is a for about 120 years in the intelligence community. [laughter] david: not quite that long. i think i've known you for that long. the former director of nsa and the longest-serving director -- mike: at that time. tickling your successor beat you out by a year or so --
david: your successor beat you out by a your or so. bringing a breadth of experience from the intelligence community to the new office created under the intelligence reform and terrorism are vegan act of 2004, one year toabout head up the cia. i could think of no one more qualified to make that tonsition from nsa, odni cia. in his spare time since leaving cia, in early 2009, he's dedicated himself to speaking and writing. he is one of the great stalwarts of intelligence that we have. it is a real privilege to have mike to my immediate left. ben powell once removed there is
theone -- you know you have lawyer at the other end when you read up his bio and it's four pages long. in the early to mid to thousands , was very instrumental in terms of his role in the irtpa. as my principal lawyer as i sat down with him at the national security council staff, anything that came out wrong, blame him. i tried to get it right. no good deed goes unpunished. he went on to become general .ounsel at pni
the no good deed goes unpunished was very instrumental in shaping the amendments, executive order that goes back to 1981 but was updated then and signed by george w. bush as president in july of 2008. there is a commonality between the two of them. they are both air force. in terms of their background. it is absolutely a delight to have them here today. we will keep that part of introduction short and get right into the questions that i have for you today. theway i structured questions and then the outline of what i'm going to cover, i will start with the "why is intelligence needed?" " what will get into
impact does intelligence have on decision-makers?" doeshen, "how well oversight actually work?" one of the reasons we are here today, as we see into the future, the hope for reauthorization on 702. and then i have a couple of bonus questions. mike, there are a lot of cliches thrown out in terms of intelligence. professionalsrmer in the intelligence business use -- in describing why intelligence is needed for the nation. "intelligence is our first line of defense." createslligence decision advantage."
we believe everyone understands what we are talking about. of come us your sense in fact, what is the value of intelligence? say, "so,en might what difference does it make?" mike: contributing to understanding. part of that might be prediction. i don't mean to oversell that. prediction is very hard, particularly about the future. onon't think the final grade an intelligence enterprise instantly based on predicting future events. that mr.fond of saying , that thing there has a one in 10 chance of happening. if it happens, it does not mean i was wrong.
that kind of soft science, but understanding something different. understanding is something you can deliver. intelligence creates the left and right hand boundaries of a mature conversation with regard to a policy decision. a sledge is --ewhere you say 1, 2, 3, 4 right and left hand boundaries of legitimate policy discussion. that should not appear to be a low bar to you. particularly high it requires the intelligence officer to really have a deep understanding of what it is he or she is laying out to the policymaker.
historically, the stuff that amprised understanding had high percentage, high quotient of secrets that had to be stolen. when of the major changes in intelligence -- one of the major changes in intelligence, that is still important and there are still secrets that have to be stolen. in terms of tallying the information to create understanding, in today's world, a lot more of that is generally available if we know how to harvest it. if the intelligence guy thinks he has a spot at the meeting because he is the teller of secrets, his role is going to diminish of it -- diminish a bit. if you understands he is the and is willing to
embrace all sources of information, including that which remain secret, he gets to talk first for a long time. setting the broad context for the choices that may follow. that is not to start. -- enough to start. ben: the free world still largely relies on the u.s. intelligence enterprise. for understanding the capabilities of adversaries. regimes live with many who are nontransparent, opaque at best. intelligence is absolutely critical to setting this boundaries -- those boundaries of policy discussion. there are huge and sources of information that are out there
in the open. many regimes and adversaries and others around the world operate in opaque and nontransparent ways. there are reasons they have their secrets. number of those secrets have to do with wanting to do harm to the u.s. and our allies. it is critical that the country learn the secrets. e: i would simply add, it really is the acquisition and then transfer of knowledge to ben describedand when it comes to the value proposition of intelligence. fighter inthe war addition to policymaker. mikeame decision tree comeibed for the president
in the situation room when you are talking about a policy decision that intelligence will contribute to making, that applies to the four-star , 11 around the globe and increasingly in the area of counterterrorism, the law enforcement community as well. really, it is about this left and right boundary of knowledge. that actually brings me into my second question. collection and intelligence analysis in an open society. popular more of what is
is in open source is. -- sources. this challenge is to acquiring that. still you reconcile stealing secrets on the one hand, yet this growing amount of open source data that can easily -- if you to warnings collect all the social media, you may get very good warning information. describe this tension between an open society and intelligence and stealing secrets. mike:. softball. ok. [laughter] mike: the slice that is truly secret is probably smaller than it used to be. so much more is available publicly. i would also posit that the slice that is truly secret is even more secret than it used to be.
it is harder to retrieve. as a product of the same global dynamic that creates more information here, this same technology is creating that slice of secrets to be stolen harder to steal. how do we remain permeable enough to the brother society -- brother society while security -- that is one way of looking at it. a second way of looking at it is how i treat my class at george mason. -- iin every semester
begin with plato's parable the cave. can you know the truth? truth -- we can know truth. we should pursue truth. is the secret pursuit of truth compatible with a democracy? open, again, relies on processes for legitimacy. semester, they come up with yes. espionage is indeed compatible with democracy. i think it has something to do former director of the cia and then relying on me for their final grade. another one.ou it is not just compatible. it is essential to policy.
world in which the immediate threat is actually more personal and more likely to touch us than it did 20 or 30 years ago. in any event, it's not just compatible with our democracy. it's essential to our democracy. frightened people don't make good democrats or good d, small rs, small in both cases. i have seen what we do when we are frightened. do well,o do what we not just to protect american security, but there would be serious damage to american liberty were we to fail in our task.
said, i was fond of saying while i was director of nsa that the only thing i needed to do to be successful was to be inside a and powerful broader political culture that stresses only two things, secrecy and power. so, there will be this tension between what we do and the essence of it, and the broader society. wasked carly fiorina, who the head of my civilian advisory carly,t the cia, i said i have been wondering, 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 from every aspect ?f life and carly went and talked to some folks around town, came deck atthe seventh
langley, walked across, ok, will america be able to conduct espionage with more transparency public accountability, and she and her team looked me in the eyes and said". that was the answer. -- said, "close call." that was the answer. this is an issue with the american people. how much must we make available in order to get the sanction for what we do without make what we do not worth doing in the first place? we are now involved in that debate. the former answer was to default to representative government, oversight committees, the fisa court, the president, and thekly, after snowden and
215 program, a lot of americans who were not wearing tinfoil on their heads, a lot of middle-of-the-road americans said the president knew, the oversight committees new, the court new, but i am not sure that any longer constitutes consent of the government. that might be consent of the .overnment you told them, but you didn't tell me. that is where we are now. so the challenge as we move forward is how do we build a certain sense of comfort in the large body politic without being so public that we destroy the enterprise we are trying to legitimize? that's a long answer. before i turn to you, i will just interject that --
>> before i turned you, i will just interject that for the better part of 60 years, the rest of the world has followed our lead on this. asia-pacific, latin america and partners all look at this and say how is the u.s. resolving this tension between andprotection and secrecy openness with their societies, because our partnerships will be actually if not defined by that relationship? i just said, i believe. i do. believe we have the most transparent intelligent communities on the planet. i mean everything i said, but our line of departure is way the otherny of
western democracies. others pick on the nsa is because they are not allowed to know anything about what people in her own countries do. that's pre-snowden. interesting reality. our political culture demands we be more transparent and we are more transparent already than any other system on the planet. we can have an american congressmen go to country acts y,d want to go to location wh and oh, you cannot go there. , and happy to go to cannot go tond we this because we share it with
our allies and no parliamentarian has ever been allowed to go to that facility. that is a routine occurrence. >> if you wanted to get attention from a foreign intelligence service, just make it known that you are going to meet with a visiting parliamentarian delegation from a foreign country. i have never received as much attention and phone calls from services as i did when it was that i was going to meet with parliamentarians from their country. what are you going to talk to them about? are you going to talk about u.s. oversight and the numerous information you need to share with oversight committees and others? no, i am going to talk about how wonderful their country is, their food, the beautiful places to visit. ok, you're not going to mention the national security act of
1947, are you? no, that would be classified. the statute in books. it's not really secret that we have these committees. right, but it sensitive. it sensitive. you're not going to go into that, are you? america evenn comes within many, many, many here.of what we have it's easy for a lot of countries to throw stones publicly at the united states while privately knowing they are very dependent , and also know that we have the kind of transparency mechanisms that no one comes close to meeting. >> it still may not be enough. >> it still may not be enough. >> because we have to, did the broader society. -- have to accommodate the
broader society. >> still under the section of why his intelligence needed, my final question to both of you is parallelsaw any between the overextension of intelligence means and capabilities where facing those adversaries -- i think this weire auditorium knows are facing -- what should those limits be within the boundaries applied by august in and the just war theories applicable to the use of force but applied to intelligence? ben: when we talk about just defense, intelligence is critical. second, you hope you don't get
to a just war because good intelligence, fundamentally, you hope is going to help you to ,ither prevent conflicts or part of just war thinking is hopefully getting to a situation of peace. as quick as possible. fightingis part of that war. fundamentally, intelligence is fundamental to both of those pieces in terms of hopefully preventing more and conflict -- and conflict, and secondly, if you do have to enter into war and conflict, hopefully you have the intelligence necessary to prosecute the conflict in as efficient a manner as possible, which will hopefully result in less loss of lives. ultimately, war is going to be usingtaking loss, so
intelligence to prevent that is going to be critical. if you look at the underlying documents in intelligence guidance in terms of the types of means the intelligence community uses, in consideration particularly when you're talking using the persons least restrictive means necessary in some cases -- there are exceptions to that. there are lots of things we can talk about, but fundamentally, when you think about broader concepts like just war and you like theocuments fundamental charter documents promulgated for the intelligence community, if you read that document, you will see these kinds of concepts throughout it and throughout our statute. moderator: mike, did you have any examples of where you kind that issue of where the line is drawn?
mike: sure. the just war principle is a necessity, a distinction of proportionality, applied in a way that is very isolated and give sera decent moral framework through which to view it. the line i uses look -- gives you a decent moral framework through which to view it. we are always trying to balance security, privacy, safety, liberty. the point i try to make to an audience is those are all virtues. we want them all. this is not the forces of light and the forces of darkness. dressed in black and dressed in white. these are all the reasons we organize governments. we have a history of trying to what are actually desirable virtues. how do you do that? balance?u
i have talked about this from time to time. it is based on the totality of circumstances in which you find yourself. the fulcrum moves based upon the ,roader external environment and appreciation of which is created by good intelligence. this history. what kind of reasonable expectations of ribas c -- which -- oft we are guaranteed privacy, which is what we are guaranteed, depends on the totality of circumstances in which you find yourself. tweaked the dial, but fully within my authorities. we were in a different circumstance. we were aware we were in a different circumstance. the afternoon of 9/11 than the morning of 9/11. theake these decisions all
time, whether you tack left or tack right in balancing the virtuous end. necessity seems to be a good element to hold up to the light. -- how much good do i get for the necessary harm distinction.e, and how much do i focus on those who truly deserve a legitimate target versus those who might be incidental? we do that all the time. i think augustine applies to espionage as well as just war. there is a problem that is more political than ethical. , when political process we have arrived at the totality of circumstances and it demands , that wehe fulcrum impede speech or privacy a
little bit -- by the way, don't take this as threatening. you would have accepted what happened it ellis -- at dulles when you try to get on an airplane, how many of you would have accepted that in july of 2001? the broader point i am trying to make is based on the totality of circumstances, i am not worried about that. i think we can actually do that well. as an intelligence professional, i am worried about going the other way. i am worried about what is the youtical process by which -- because of the totality of circumstances in which you now find yourself, you can ease up on some of the things you previously found necessary. danger that this
thing works like a ratchet wrench and only goes one way. i addressed this several years ago at the university of michigan. i said it's hard for me to imagine the degree of political courage required for and the ministration cash and administration to say -- and administration to say we have done that long enough and we don't need to do it anymore. we need to pull back. people like me need to be prepared to explain to policymakers how it is he gets to do that. that is another responsibility we have to embrace. >> i see 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 we would have lots of conversations about well, you didn't need to do that. why did you do that?
be you did notd need to do those things, the threat was not that big. nothing really happened here. there were not the mall bombings, the shutdown of our transportation network that clearly al qaeda wanted to do. there was not the great damage to our economy. there weren't the additional attacks people talked about. intelligence suffered through its success. you are going to be continually recognized and we that at the time. i remember having those conversations that the more successful we were, the more questioning we would get. when do worry about general hayden described in terms of the calibration and .here 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 out there becoming more and more -- we can talke hem, nuclear, ciber, it is not exactly making one feel more comfortable, and the tools made available to the veryary -- we are in a different world now in terms of the availability. we can talk about gene splicing to cyber warfare, to chemical. andof that knowledge technology is available, and there is a downside to that. when we think about it in terms of what we had with conventional militaries when we think about communications to higher and technology that is
so much more widely available now and if that were to be used against americans, certainly, we are going to be having a very different debate about intelligence and the authority being used against americans. fact, if we do our job well, it is not just american safety we protect, we're bulwarks of american liberty. >> and we have had some very fortunate things. if the plane had gone down in , which asd christmas everyone knows, that was very close. a fire on a plane is a very bad thing. we were talking about a person trying to set off an explosive upon landing, final approach in detroit, and if you had 300 empty chairs at the dinner table i think i think that would've changed america. 'sat got the administration
attention and brought it home. fortunately, the passengers acted quickly. somebody set off a few square.es in time if that had been successful, another near miss, i think that would have changed the debate we had. >> exactly. let's transition to what impact intelligence has. i would start with mike on this question of what is produced by the intelligence community. the question of is it right sized? do they play better together? there are 17 elements in the intelligence community, now session including the office of the director of national intelligence.
-- now including the office of the director of national intelligence. ,ow well do they play together -- ears, 12 years after >> i am remembering our early days in the office of intelligence when we had john negroponte, an early choice. most of america was saying who is that guy with george bush? who broughtomebody real gravitas. we were drawing boxes and he was going, why 16? that seems like a lot of people. and i walked him
.hrough the organization it is actually a rational division of labor. we are able to do this and specialized because we are who we are. we throw $50 billion a year at this enterprise. we have about 105,000 people fully employed. afterhad a wonderful line brussels. he said the europeans are now lining up an american intelligence leviathan on. in order to get an american intelligence product while continuing to wring their hands about american intelligence collection. it is a reasonably well-organized community. a couple of highlights. state inr, right? character, size, focus, they do something that even the large stable of s at cia cannot do.
it brings a different aspect to analytical questions. david was at dia. he probably won't appreciate the description, but this is a kind oflar -- this is the blue-collar workers of the american intelligence community. >> exciting stuff, if you are into it. mike: and somebody has to do that. it's ok. i don't mind the number 17. we are better at synchronizing 17. all three of us have power asth how much opposed to responsibility they have been given, but i think we can make this work if we have the right people in the job, right validation and intention from the president. i don't think anybody is suggesting blowing it up or inviting congress to do it one more time. that can work as well.
even in the bad old days, i was fond of saying let me tell you a sentence i have never heard. you guys all screwed up. you need to be more like the -- i never got the end of that sentence. the israelis? give me a break. pre-9/11, we were better at this than anyone in the world in terms of going left then white -- left and right across the three letter agencies. now neither god nor you grade on a curve. we had to make it better and we have. information --et europeans gethe information around europe? tell the americans. we push the information out. it's a bit cartoonish, but it's not untrue. i think we have made good
progress. it is big. it is bureaucratic. it could use some belt-tightening. but fundamentally, it's all right. . do have one issue i will see if my partners share this view. from the outside looking in now is, iseven years, it think, a very slow moving body. it appears to be overly cautious. it appears to be adverse.tically risk dare i say, with a good lawyer over left, badly o lawyer from time to time. take a look at yourself. from the outside looking in -- and i am not talking about procurement contracts. i am talking about a caution, a
conservatism, a risk aversion, a .low pace about things if jim were over here, he would be pushing back on everyone of those descriptions, i know. but you asked, and that is my observation. that it hasld add been slow to embrace innovation which has transitioned from the government sector in major programs to the private sector. the embracing of commercially available off-the-shelf capabilities may be modified by two or three degrees from what is one on the shelves, of those areas where i think it has been slow to embrace that. ben, any thoughts you have in terms of how the community is functioning today? : i don't think when you look at the intelligence community, we look at the number 17 and say gosh, that is a lot, there must be room to streamline.
but when you dig deeper and look at the missions of each one of those, it suddenly becomes very hard. toyou know, when we tried give some missions given to the dni back to individual agencies, in some cases, the complaints the all the way to president. we were being criticized for being too big of a bureaucracy, but we could not give that back to one of the intelligence agencies. we had this honest broker role behind the scenes. when you look at some fundamental things that we have that really prevent us from combining elements of the i don'tence community, suggest those are bad things. but as much as tried to erase
foreign or domestic and how much the wall between information sharing has been taken down, we have not changed our constitution, nor should we change our constitution. you will still have the fbi with domestic authority that you have.not one cia to you don't want to combine those. you want to understand the capability of missiles and rifles. that's very different from the cia combining nonmilitary and leadership gathering intelligence. when you look at the missions of these individual agencies, when we were thinking about intelligence reform, it never really came to the point where you would say let's reduce these and combine these. somehow we would get a greater uplift from that.
there is progress to be made in how the community can act in a more coordinated way and use technology to shared capabilities across the community. the share capabilities across the community. does everyone need to duplicate software? to have thereon programs? do we need 17 different systems, different -- to have their own programs? do we need 17 different systems? their own programs? willow's have those arguments, and that is something that she will always have those you will always have those arguments. and it's a matter of do those arguments have merit or is somebody just wanting their own
flavor of ice cream? we can look and see what kind of commonality we can have across the community. >> i would just interject that i think there is a tremendous value in millennial's and those who have come on the scene in wholast 10 or 15 years think collaboration and what the intelligence community calls -- that is aueuing tipoff from one agency in their collection to another one that allows for imagery to cover something at the national security agency or human sources on the ground, in that there is of you that -- a view that collaboration, particularly that anyone younger than the people sitting up here think is a good thing. among the 17, that certainly has improved, from my perspective, over the last decade.
difference does intelligence make to a policy maker? if, for example, you are devising a presidential what two or three -- would you recommend that we currently do not have? we talked about apple and encryption. i think a broad sweep of technology will make the content of communications more difficult to read, and it is in this case. we may accelerate it or slow it. content will get harder and harder to retreat. if you think of everything we collect as this paramedic, i have always said the base is
your bodily signs. every morning you can tell how the organism is doing. it is comprehensive enough that you get that at the top 20 is industrial, boutique, general, this is specific, this is essential, this is elegant. and in between the disciplines, imagery, measurement, open-source, and someone. we have lived through a golden age of electronic surveillance. the last 15 years, when all of us mistakenly and clumsily decided to put things we used to keep in a safe and put them in and i'm being cartoonish, but globally that is what has happened. we have been able to harvest volumes of valuable intelligence through electronic surveillance. i think that golden age is not
going to end, but it is beginning to contract. if you are asking me to advise a president, how now do you compensate for what was such a rich vein of useful intelligence? you begin to shift her emphasis to the other parts of the chairman that are going to have to take up the slack that is necessarily going to be created. think content is going to be harder to come by. to do you shift your weight lead to what i can predict to what is an inevitable revolution -- >> and you are not suggesting it is that easy. it is the longer available, so now we will have to spend -- it will be harder and different in how we try to gain it. that would be my master view as the communityrc
will have to follow. order me go to executive as amended in july 2008. does that framework, which is nested below the intelligence reform and terrorism prevention takes to us what it go into this future world of the -- or do wehat need to update the executive order? you dial united states intelligence activities. it is the charter of the intelligence community, and that order lays out the responsibilities of the intelligence community who is charged with performing the function of the various intelligence disciplines. general hayden mentioned human intelligence, largely with cia in the lead, nsa, military
intelligence, the defense intelligence agencies. 333.find those in 12 you also hear so much of the hear about,ies you like bands on assassinations, that is not pursuant to statute. .arious fundamental orders manyed 2008, there were attempts. we traced that back to 1981 to amend it. very hard to do, even in 2008. ultimately a number of decisions going to the president. this is a bit of an obscure order, but lays out the foundation of the community. i think we can continue with 12333 the way it is now.
there are important exceptions. in 2008, we talked about cyber security and whether we were going to address responsibility for cyber security in 12333. the determination was that was going to go into that too hard to do jar. even with the agreement in a rare time of leaders, it was a golden time in terms of having secretary gates with his background at the department of defense and understanding these issues and energy lengths. general hayden at cia. mike mcconnell at dni. judge yo kc -- mukasey. cyber, that we had to put it in category,rd to do
this administration has made progress in terms of dividing responsibility, the role of fbi, cia, and others, that it is still in question whether we have that right and whether we are getting the uplift across the community that we can, and that brings me back to your question is if i were advising somebody in terms of the next president, what improvements would we have or what questions should that person ask. one question i would ask the president -- or i would have the president at his leaders, and say, do we have the authority that we need right now mr. or mr. secretaryor of defense, to defend the nation's critical if researchers in the case of a cyberattacks? been endlessw warnings and testimonies that that is one of the top threats facing the country.
the president needs to ask the question do we have the property authorities and organization. i do not want to hear from 2020 from a commission to review the attack on the nation's critical infrastructure that these agencies did not have the right authority, they did not have the right people -- >> and no one said anything. >> they did not have the right organization. whoever the president that is, that is the fundamental question. there is no political constituency out there. this will not get you any electoral college votes in terms of asking those questions, but those types of things where you need to ask and hold people accountable to say, i do not want to hear from some commission two years from now that there were all these problems down in the community that we do not have the authority, that know what brought this to the to. i was elected by the people to protect us, and there there are hard decisions, that i'm willing to take those are very i'm
telling you i do not want to hear about a cyberattacks on her critical infrastructure and are your agencies in and authorities that you needed that were not brought to my digital because of political concerns or other concerns. as president, let me take that on. that is my job. that's not have this whole commission issued again where all of a sudden we are reading overlawyeredwere -- or fiveded to that needed to be amended. attackell me after an telling me we were told by someone on the staff not to bring it to your attention. that is one piece. the second improvement, that i would talk about, is the need to support the intelligence community. that does not mean blind support when they are wrong. they are wrong when something goes wrong. there needs to be
accountability. we cannot have a feeding frenzy that goes unanswered depends on how is incorrect in the lawlessness of the community. it is read to see a community that has more potential in terms of compliance, and frankly some cases overreaction, and you read about 9/11 and the myths that very cautious activities. i think the president needs to understand the fragility of the workforce and our intelligence sources. and when there are issues that it needs to be defended, if it is appropriate. and it is not just a one-time defense. it is not just a one-time speech in our culture. it is something that needs a happen over and over again and explained to the american people , because if it is all just one-sided, if it is all portrayed in the darkest corner of the room, as general hayden said, that has an effect. it has an effect on political support and the ability to get those authorities from congress that you need to defend the
country. when we talk about the fisa amendment act and the issues that were with fisa and how outdated it was, that was a three-year process. that was endless hearings, endless amounts of testimony, endless amount of briefings. every single day it was three yards. it was not portrayed sometime as you showed up, you explained why it was updated, and we got a statute. having lived through that for three years, this is something that needs to be done over and over again. and so the community needs the support of the political leadership to get the authorities it needs. >> that is a great point. i will double down on what ben said. the role of the president in selecting the right leadership of the community. i said this structural work, it depends on the character of the dni, the relationship of the dni
to the president, and the relationship of the dni to the director of the cia. that has to be a product of turtle choices on the transitional team with the involvement of the president-elect. when it hits the fan, he needs to jump out there. i write in the book about what happened after "the new york times" wrote, and i said when things like this happen, we have the long pause. is the guy who told us to do this is going to go out there and self identified that he told us to do it and he going to identify, and is he going to defend us? in this instance, the thursday probably the way you would imagine that friday to be at the white house. the day friday, the president told his staff to throw away the radio broadcast
that he had already produced, and he went on live saturday morning and did what we all would have hoped he did. and within a few weeks he visited fort meade, visibly. that is what you need from the commander in chief. interject, the team that is selected, i would add one additional one, because it is such a dominant role that the defense department plays, and that is the secretary of defense. ciathe relationship of dni, director, and secretary of defense, largely delegated to the undersecretary for intelligence. that personnel selection team, when it comes to the dod, is intended to mention. mr. hayden: lifelong personal friends, and it was still almost in the too hard to do box. mr. shedd: in the 18 months.
>> i recall certain conversations, people like secretary gates. articles and conversations where it was said, when you were to drive cia, you supported this amendment, and we looked at the memos, and they were strident about the need to reform this, and conversations like, where you sit makes a difference. even with these incredible personalities and experiences, it was a hard fight. sections to the third of the questions, why is intelligence needed, what difference does it make him a terms of impact, and i want to start with the question of how well does oversight work. you have touched on it. one of the criticisms leveled against the intelligence community is that there is this in essence -- and i use liberty in these words -- there is never enough oversight. bring it toght will
a complete standstill. what is your view in terms of the level of oversight that we currently have against these challenges that we have, whether they are the crises we face run the world and the challenges of collection, or the intelligence community personnel understand what those rules are? mr. powell: first flight, unlike authorities that may expand or contract, depending on the political wind depending on the threats the country, oversight as best i can come historically truly is the one case that is a one-way ratchet. -- a few had oversight examples that we never take it away. second, you ask the question about the intelligence community is too big, 17 elements that are right size? no one ever asks, do we have the right size of oversight? no, we do not do that.
we have another senate confirmed official. add more people to it. there's never that question about oversight, because moral oversight is always better, right? third, it is a very serious effectingn terms of the mission, how cumbersome it can become, but also the importance of oversight done well can improve the mission. constructive oversight can do it. let's lay out the terrain about what we are talking about. with thecongress senate intelligence community, house intelligence committee, but it does not stop there. you have judiciary committees, preparations committees, the armed services committees, you have leadership offices, and i can spend the rest of the panel going down the rest of the mechanisms in terms of homeland
security, government operations. we have recently added more oversight in terms of congressional bodies with the general government giving anlity office unprecedented role in the community, something that the intelligence community and the administration have long talked about with the congress. that statute has now passed. you have an assistant secretary of defense. yet senate confirmed general counsel, the president intelligence advisory board -- have i warned you out? believe me, i could continue with another number of bodies. we need to ask the question -- and they should be subjected to as a questions we asked the others in the community. is this oversight interbreeding to the mid -- contributing to the mission?
is it gotcha oversight? that is something that concerns me. when we hear about what happened with national security letters somehe fbi reports that deficiencies are identified in the use of the national security letter authorities, but have been better to have a compliance organization terms of oversight reviewing it in real-time identifying those issues. usual dcport per the way of operating comes up for years later and identified these problems. i have always argued for real-time oversight as opposed to what i call dr. oversight, which i find is far less constructive. mr. hayden: i will double down on everything that ben said. oversight may help solve that problem. i suggested earlier with regard to the broad legitimacy of the enterprise the eyes of the american people. the oversight is seen to be
sufficiently invasive and howevere and approving, we define that, that maky go a long way of going down the field . i would suggest picketing off of what ben said, narrow and intense is far better than broad. i am quite 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 rearview mirror, rather than adding bodies to the left and right in the right and the left, which creates this bureaucracy that the operational community has to then fee in order get on to do what they have to do. one brief example. andesponse to mr. snowden the special commission created to look at nsa collection, the
pdd 28,t issued which has to do with extending u.s. persons protections and a collection of electronic surveillance, extending those protections to non-u.s. persons. i will not argue the merits of that. i am telling you the bureaucratic overhang of that is incredibly significant. and so narrow, intense, legitimate. that out of the congress, i would put pressure on both the majority and minority party. ros on this committee. leave the ideologues over here for the judicial committee, perhaps. or some other committees. you need very pragmatic people
committees,these and finally, this is hard stuff. i do not understand the virtue of term limits for members of the oversight committee, as they get to get mastery of what it is you are telling them. then they got to go. it just does not do what we need. >> an unfortunate trend. we have observed the politicization of intelligence with oversight. that has occurred over the last decade plus in terms of congress. if i look back over before my retirement from government, a model of a well-looking oversight relationship was chairman rogers -- chairman mike rogers, not to be confused with admiral rogers, and dutch reports berger on the ranking member of the house committee. why they politicized the issue
and looked at intelligence and its value to the nation. that was welcome. mind you i am not suggesting less oversight or deeper oversight, as you put it, but certainly where we were not seeing a mommy-daddy fight every time in terms of it being politicized, which then takes me to the one bonus question for you, mike. thisave a new book, and might be dust on the cleats, metaphors on the football field. one of the controversial topics remains enhanced interrogations that were used in the immediate coupleth and the of years after 9/11. you are the subject of significant criticism for how you characterized intelligence. do you have any comments about that intelligence value versus
everything we have been talking about this morning questio? mr. hayden: these were very edgy decisions. they were done out of duty. we never did it because they observed that they deserved it, as some people's just should do the future. this is not looking at the past. it is about gaining 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. necessity, proportionality, distinction. changedot the agency, i some of things because i have different circumstances. this was not saying this was an appropriate for those circumstances. we had two statutes that change the legal underpinning. we knew more about al qaeda, we threats.ter sense of
i thought we could do away with the program, but at we could make adjustments. getting back to proportionality that needs to govern our actions when we have to make these difficult choices. people at the agency believed the record justifies the program. the people at the agency believed we acquired information not otherwise available or not otherwise available in a timely manner from doing what it was the agency did. it was an ugly program when it started. george tenet will freely admit to that. it was done on the fly. i talk about the blind folks -- 48 hours after they were told to leave langley. were missteps. those were early in the program, and the longer it went, the more regularized and disciplined it speaking. i do not know what more is to be
said. we believe the historical record is as we described it to be. senate immigrants believe the record is the way they described it to be. i tire of the issue. the agency is not going to do this again. it is 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 her government. when the director says i want you to do this for me, the case officer gets to ask for question -- do you think this is good idea, president is authorized, the attorney general's at is ok, covers mental? -- congressman told? yes, they had. at that point they know the american public is find a back.
that contract was violated. multiple cia directors when asked is the agency ever going to waterborne again, and respond, absolutely not. not a judgment on what was done before. what a judgment on what happened afterward. if some future president wants to one or somebody, he better bring his own bucket, because the agents will not do it. it is not necessarily a good thing. mr. shedd: oftentimes, it is said, and i think you may a reference to it with secretary gates, you stand on an issue where you sit. is there any way to overcome that in building that stronger sense of community as we face these incredible threats around none of which appear to subside, because the status quo of the middle east,
north africa, are not returning to a pre-arab spring. why is it that bureaucracies get in the way of this stand where you sit? mr. powell: you're asking if i can solve the iron law of bureaucracy? if i could, i could be in a different position. more seriously, you are going to your,hose iron laws of you're going to have those issues. we have made a tremendous progress on that. everyone who goes overseas, that saw the integration of the intelligence community overseas always came back, and they also the same thing. no matter what your views are, what your views are on these issues, and how amazing it was to see the community sitting overseasin operation -- the agencies together, the intelligence agencies, that
people who think about mapping and geography and things that nsa withore than that, its intelligence, cia with human intelligence, supporting the military, having all this people together, because they are forced together, supporting in those cases the war fighter and other efforts. everybody came back and said if we could replicate that in dc somehow, why does dc scene impregnable to what is going on overseas? we tried to do things like joint from inich is taken terms of what the military has done with duty across services and trying to do that within the community. is a continual, continual struggle to make what happens in a foreign expeditionary cents, including the fbi over there and overseas, thinking about what this is going to meet aggressively. and bring that back in the and
penetrating what seems to be the walls that are put up when you come back to dc. there is always more progress to be made there. and is the place where dni leadership of the intelligence community need to continually work that problem because it will always have a bureaucratic inertia of wanting say, i do not want to share my best people, i do not want to -- we've made a lot of progress in that, but it is something that requires continual attention all the time because all the forces are against that in some sense. that is a place where that was one of the reasons for saving up make sure that those kinds of issues do not fly back to where they were and we do not have a sense of community. the cause what you saw overseas is something that has a lot of
uplift still to be made in dc. we talked about cyber, an area that cuts across agencies. having that kind of sharing, capabilities, and understanding across the communities is just absolutely critical. be done in just a weekly meeting or monthly meeting. you need to have the best people fundamentally understanding what is going on at the other agencies, to get the uplift back at the headquarters level. mr. shedd: i would say that we could come back to what the president and the new team would have next year, and the high team leadership, how critical that would be in building that confidence, but also building that team in order to get things
done, such as security clearance reform. yes, one of those things that is very hard to do and not very attractive by way of headlines, but everyone knows that we are still doing 150 pages of f -186's, clearing security processes, and working together as a community. so i would like to take one question. we are almost out of time and the first hand up, please? >> [indiscernible] i am a soldier, no longer young -- oh, hold on. general men, this has been a very enlightening morning. i am a soldier, no longer young, andew ms. michael krauss,
-- my name is michael krauss, and the existential threat is from the islamic state and the potential threat of nations that men to cross green borders. you spoke of intentions. you spoke of proportionality. are we using the intelligence mediums to secure borders well and enablerevent decision-makers to have proportional reactions? soldier, iden, as a defer to the air force commander. absolutely ant is excellent question and it brings together all of these pieces as to the why and the how and the what. it is interesting because it is not a dilemma here, but a
dynamic. the more aggressive i allow my earlierence to be, the i would be allowed to identify the issues or the actions that i must take, thereby allowing me to do things almost certainly with a lighter touch with fewer resources and lesser impact than would be the case if i were forced to do it later. all right, little green men and the islamic state, isis is very hard now. agoas hard about one year but probably not as hard as it is today. and i can run the clock back to 2011 and decisions made regarding residual a merican forces in iraq. so i guess what i am trying to say is that if you regard
with too much intelligence collections, you may box yourself into intelligence and policy questions that are worse than they might be and the question is, of all the tools you have available, the one you want to think about as being more aggressive rather than less aggressive is collecting intelligence. ben? mr. powell: excellent question. it really does wrap this up. i think the community once said that the islamic community -- islamic state was a myth. of the not a criticism community, that goes back to what general hayden said, you know, you are dealing with very hard problems of setting the 10,daries, but one out of
don't say we didn't warn about it. but i think the islamic state -- was a miss, and it was soiss because it difficult regarding the intelligence nature. assad's armys going to stay together? will they have enough intelligence communities and information? flying, bullets start are they going to fall apart or stay cohesive and fight? going to do with little green men and others?
talk about nationstates and stability in places like ukraine and elsewhere. mr. shedd: as somebody who handle the intelligence transition in 2008 and 2009 from president bush to president obama, on the 20 first of january, the conversation would be something like this. the president-elect after november has been receiving the president's daily brief and then he sits in the chair or she sits in the chair as president and says, now tell me the secrets. that is a bad time for the dni and the director of nsa as they sit around. the chief executive of this -- that has always been my concern. the expectation of what intelligence can deliver in order to offer up where we started this conversation this morning on decision advantage, that is, having information knowledge that the enemy does
not know that you have in order to at least consider other options, and that she's executive of our nation says, now tell me the secrets because right now, this doesn't quite cut what i thought you actually would provide me. that will be a bad meeting. zaragoza the heart of your question. o it goes to the heart of question. are they taking a information and getting an assessment of what you know? in the book, i spent all whole chapter on a place in the east syrian desert. it was destroyed in an airstrike in september of 2007. presented itand we to the president with our middle april of 2007.in
this thing was damn near done. wey had a cooling pond and could see any day now that, they could have been inserting uranium. we have found it and we were actually right, and it was indeed a nuclear reactor, but we didn't give the administration much choices at all. you have this near complete nuclear reactor in the syrian desert, so that intelligence process actually constrained the policy choices that the president might have had if we were able to tell him 6, 12, or 18 months earlier. well, time is up, actually, two minutes over. being au very much for wonderful audience.
and then drill a little bit further down into counterintelligence and the rule authority. and i can't think of three lived men who have really this and worked in this area than the three you see sitting before you. my close friend and colleague rosenzweig will speak. he is a distinguished speaker here and he has served a number positionsuished throughout the years. he has his own consulting which does work in the private sector. with that. i will turn it over to paul. thank you.eig: i would be remiss if i didn't briefly mention my two panelists here, matt olsen, who is a
sadly not going to the final four university of virginia, and harvard law school, and he is a director of the national counterterrorism sector, and he is the president strategylopment of with keith alexander. to my immediate left is michael y who served as a federal judge in the southern district of new york in 2006. after a very brief stint in private practice, he returned under president bush. the title of this panel is counterterrorism collection authorities and the rule of law. which, when you begin to think about it, is something of a conundrum for a conflict, since
intelligence and espionage is at its core fundamentally a lawless activity. when we send people to iran, theychina or are by definition, almost, violating the laws in those countries. the russians send somebody here, it is a violation of american domestic law. yet the hallmark of american democracy, or one of the hallmarks of american democracy, is our commitment to the rule of law. the idea that we are a rule of law and not of men and that our officials act within the bounds of law. the american experience with that tension, if you will, has been of varying intensity. it goes back as far and my favorite story is of henry clay that famously said when he was a congressman that what the president did with his secret
service community was of no interest to congress at all and it should not be. fast-forward to the 1970's, and the perception of legalityd requirements. fast-forward to the 1990's, and looking at the restrained and collected use of collection and analysis. we have had this discussion for over 250 years, and i think it is best captured, i think, by the title of general hayden's book, "playing to the edge," which reflects his statement in the wake of 9/11 where we moved to make movements that we see as lawful. up until that day, we were playing back from the edge, and we had a great deal of caution because of the perceptions of
the requirements of legality. the requirements of lawful ofduct stand on the grounds accountability and more importantly, transparency that are sometimes in great tension with the requisite secrecy that is the effectiveness of intelligence collection. want tois panel, we talk about some of the thatmporary issues in law are in our immediate past and in our not-too-distant future as we how long can modify and regulate intelligence collection and more fundamentally, whether or not it is actually feasible to have an intelligence community that ask within the bounds of law in a democracy and still be effective in some way. so with that very brief introduction, i want to turn most to one of the moldable programs that is in the news today and will be in the
news -- most notable programs that is in the news today and will be in the news in the next two years, it is known as the internet surveillance program and after the section of law that is grounded is the section of law that authorizes the foreillance of traffic legal purposes. that law is up for a vote next year. some believe it needs an amendment and other believes it is fine as is. start and look at the sectional underpinnings of the program? any don't see constitutional weaknesses, we've got to remember that the constitution is not a treaty with the world. unitedstitution protects states persons or u.s. citizens,
and it protects anybody, a u.s. person or not, if they are here. it doesn't protect everybody in the world. as a result, it is perfectly constitutional to authorize our intelligence agencies to go around the world to collect what they need and what they ha ve, and we just heard about a presidential directive that confers upon people overseas, american citizens or not, same protections that americans have. candidly, that gives me some pause to the extent of that order in that it impacts our intelligence collections, and i assume that it does. i wonder whether that t gives us the flexibility that we need.
mr. rosenzweig: sure, and if i could go back a little bit, i like exactly the point you made if i. olsen: sure, and could go back a little bit to what you said, i like executive point you made. certain challenges, and of course, the nsa's job is to go around the world and largely break laws, and the key is that they don't break the law within the united states, and your point being in your opening comments is that we live under rules of law in this country and in my experience at the nsa, this is taken extraordinarily seriously by the men and women who work at the nsa. sayhe same time, i would that going to general hayden's metaphor, and he and i had an opportunity to talk a little bit about his data for, he is exactly right when you're talking about an operator who
has to be up on the line. there is a huge burden that the american people place on our leaders and the point from the makesperspective is that your job pretty hard as a lawyer. even though that is the right approach, that metaphor to put cleats is on he actually not true. the line of legality from having to advise someone from general hayden when he was the director of the nsa or the director at the cia, that line is sometimes not clear, right? sometimes it is distorted. it is also not a straight line. it moves and it zigzags, i think , and it is dynamic.
it is subject to interpretation in the executive branch and often the legislative branch and even the judicial branch. todayn up this discussion right now on the rule of law and our intelligence capabilities present some real problems for the lawyers operating in this case, which is now than to say, i think it is an extraordinary thesee in reconciling interests. it really is the consequence of years of experience going from 9/11 toch committee to changes in technology to judicial decisions. there were two separate efforts by congress to come up with 702 represents 702 which a delicate and really elegant balance of the interests at stake.
in my perspective, to go back to your question, it is sound constitutionally and statutorily. can give you some insights of the operational aspects of it. let's come to: that in just a second, but i want to add your discussion about the uncertainties of the line. what do you think, what do you both think, you both served in high legal advisory capacities within the administration, so what is the role of a lawyer? is it to tell your operator how to get as close to the line that he thinks he needs, or is it to counsel caution and to tell him to get this close and no closer because there is this uncertainty and as her lawyer, i want you to make sure that you are on the good side -- your lawyer, i want you to make sure that you are on the good side?
to people in the intelligence collection community, how did you perceive your role and how would you approach that problem, just generically, without reference to 702 or anything else? 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 or y or z, legal or illegal, and at that point, yes, it is about line drawing. asthmatic just pointed out, some of those lines are not right. permits, it 702 doesn't permit, it recognizes that there are going to be incidental collections of
information about u.s. persons overseas. net,you are casting a wide you are necessarily and possibly going to be bringing in some information about u.s. individuals. that is not your goal. it depends on the good faith of both the people who are using 702 and the people who are overseen people who are using is, you gather information on a u.s. person, it has to be incidental to what it is you are doing. you can't conduct an investigation for the purpose of gathering quote unquote " incidental information" if that is what you are interested in. that is not a lot to take place and that could get you into deep trouble. published a book back in 2007 or 2006 actually, described what he said was
cycles of aggression in the intelligence community, and that is what we have been living with over the last several decades where the intelligence community ,oes too far and is criticized is yanked, and people are disciplined, and they then become committed and we have hearings about how come you didn't connect the dots? about11 hearings were all connecting dots. now we are having a debate whether you are permitted to gather dots or whether you are able to connect them at a later date. so the cycles continue, which is regrettable. mr. olsen: i completely agree with him on this point. thear as the challenge and danger of this pendulum swinging and what you see how that
impacts particularly lawyers, not just operators, lawyers and the advice that they give and the dangers inherent for the lawyers who become too risk-averse. it is often easier to say no instead of saying yes. but you know, what i would advise lawyers at the nsa and in justice as well, in regards to can question, i think you have multiple roles as a lawyer for the government. in some cases, you are merely advising on what the line is and where the line is and what the legal rules are. 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 policy. that is the legal rule, and your question is, should we stay back from the line to avoid the danger of potentially going over it? now you are in a policy round and you are giving somebody advice for being accountable on making the decision on a policy
decision. here is my thought on the wisdom of that course of action, what you should be explicit that that is now a policy judgment so that the decision-makers are not confused to think that what you are saying is, that option is off-limits because it is illegal. i think it is making a very clear distinction about what the legal lines are and what your policy advice is and that is really important. mr. rosenzweig: let me just press on that just a hit because one of the things you said earlier that really struck me is that the line is often indefinite. so how you express that line to your client is sometimes not a policy choice but a quasi-5 risk choice. your clients of choice, this is the maximum line, this is the minimum line?
yes, i think you can say it as an abstract level, this is clearly over the line. you can express that in terms of risk. there is some risk. the risk can be looked at it different. judge mukasey could look at it differently, and there could be risks that congress could look at it differently, the american people could look at it differently, so there are risks. there is the risk calculus as a way to think about it. if you talk about fourth amendment questions and where the touchstone of the fourth amended, it is reasonableness. nothing more specific than that. the body of case law is behind it but that body of case law applies to the person on the street and not intelligence officers overseas. it is not the same degree of case law building up behind what reasonableness means. so that is really, really difficult. is dangery: there
from pulling back to far from the line. i think we saw that pretty vividly before 9/11 when at the justice department it was felt that the sharing of intelligence information with criminal investigators was something that the foreign intelligence statue part. te this wall was -- statue barred. thehis wall was created and wall was a figment of their imagination. they very well paid a price for that on 9/11 when two of the hijackers who were being fought by the criminal folks came into the united states and the intelligence people knew that, but they couldn't communicate with criminal folks and criminal folks couldn't communicate with result, the a fellow at the controls of the airplanes that hit the pentagon was not detected. mr. rosenzweig: let's circle useful 702 which will be