The Johns Hopkins Foreign Affairs Symposium Presents: The Price of Privacy: Re-Evaluating the NSA

约翰斯·霍普金斯大学外交事务研讨会呈现：隐私的代价：重新审视美国国家安全局 在爱德华·斯诺登披露机密信息后，戴维·科尔与迈克尔·海登将军就政府大规模监控的法律、行动和民主合法性展开交锋。科尔认为，依据第215条进行的秘密批量电话数据收集以及广泛的第702条计划，在未经公众真正同意或缺乏已证明的行动必要性的情况下施加秘密法律和拉网式监控，颠覆了民主原则。海登则为情报界的工作记录辩护，坚持认为电话元数据查询在宪法框架内运行，为维护国家安全需要行动保密，并且体现了对外国威胁做出的必要且有节制的应对。双方还就第三方准则、元数据的定义、机构监督的失效，以及政府透明度与间谍活动有效性之间不可避免的摩擦展开了深入辩论。 戴维·科尔与迈克尔·海登将军就美国国家安全局依据第215条开展的批量电话元数据计划的合法性展开辩论，在第四修正案的隐私保护与反恐迫切需求之间权衡取舍。 (0:21) 海登承认美国政府“会根据元数据杀人”，但坚称国内第215条记录被限制在经过审计的“保险箱”内，一年仅被查询了288次。 (17:32) 隐私与公民自由监督委员会（PCLOB）得出结论，在过去七年间，依据第215条批量采集电话记录未能阻止任何一起恐怖阴谋或抓捕任何一名行动人员。 (27:32) 由于通信由固定电话向移动电话转变，到2013年美国国家安全局的批量收集仅覆盖了20%至30%的国内元数据，这促使奥巴马政府提议直接查询运营商存储的数据。 (41:30)

[6:58] General Michael Hayden: We as a free people are not trying to decide between good and evil. We as a free people are trying to balance values. [3:35] David Cole: I think the basic issue is that to have a functioning and healthy democracy I think you need two things: you need transparency from the government and you need privacy for the citizenry. [66:36] David Cole: I'm not against surveillance. I'm against dragnet. I'm against secrecy. And I'm against American government officials lying to the American people. [50:20] General Michael Hayden: Guilt and innocence and suspicion and suspicionless and so on—those are law enforcement terms. Those are not intelligence terms.

[0:21] Use some size walk up here. Uh, it's [0:24] great to be with you. Great to be at [0:25] John Hopkins University and uh, I want [0:27] to thank you for having the largest name [0:28] plate I've ever had in front of me at a [0:30] panel I've been able to moderate. Uh, [0:32] let's get right to it. I want to [0:33] introduce our two [0:36] debate participants this evening. [0:39] Um, [0:40] General Michael Hayden [0:41] is with us tonight. [0:43] He is uh, central not only to the [0:45] intellectual debate about security, the [0:48] Constitution, privacy, [0:51] but he is an actor. [0:53] A real live actor participant in debates [0:55] within the White House, within the [0:57] intelligence community, and within the [0:58] Justice Department about these very [1:01] issues. He was the 15th director of the [1:03] National Security Agency from 1999 to [1:05] 2005 and he was the 20th director of the [1:08] Central Intelligence Agency from 2006 to [1:11] 2009. [1:13] In between he was the Deputy Director of [1:15] National Intelligence. Please welcome [1:17] General Michael Hayden. [1:33] Also, someone very active in the [1:35] intellectual and practical dimensions of [1:37] this debate, David Cole. He teaches [1:40] constitutional law, national security, [1:42] and criminal justice at Georgetown [1:43] University. He has published seven books [1:46] on this very topic. He is also [1:48] a legal affairs correspondent for the [1:50] nation. He is one of the most [1:52] sought-after thinkers [1:54] on the the of national security, [1:56] intelligence, its application, the lines [1:59] of privacy, and where it intersects or [2:02] in some cases doesn't intersect with [2:03] constitutional protections. [2:06] Ladies and gentlemen, David Cole. [2:17] I want to begin with a quick note. I [2:19] missed two trains from DC to try to get [2:21] up here tonight. So, I was in a cab and [2:23] I was texting my best friend who lives [2:24] in San Diego. His father is an 1862 [2:26] graduate of this distinguished [2:28] university. And I texted him and I said, [2:30] "Hey, Steve, what did your dad graduate [2:32] in?" [2:33] "Physics." "What year?" "1962." "What [2:36] did he do after that?" "He made the [2:37] first prototype or was a researcher on [2:39] the first prototype drones [2:41] to spy on the Soviets." [2:44] I bring that up because this issue is [2:46] not new. [2:47] National security is not new. Spying, [2:50] espionage is not new. [2:52] Americans have participated in it, [2:54] learned about it, practiced it, and [2:56] constantly debated [2:58] within government and with the public at [3:00] large [3:02] the limits and the parameters of [3:04] security, privacy, and how it fits under [3:06] the umbrella of our constitutional [3:07] protections. And we're going to do that [3:09] tonight. [3:10] What I want to start with both of our [3:11] guest, I want to start with you, David, [3:13] and then General Hayden, you. [3:15] If you could [3:16] give us your encapsulated [3:20] sense [3:21] of the most important underlying issues [3:24] and where you come down [3:26] on as our introducers talked about the [3:28] practical realism of security, [3:31] constitutional protections, and privacy. [3:33] David. [3:35] Well, I think I think I'm clearly the [3:37] realist here and and General Hayden is [3:39] the idealist. Um so, so we'll start [3:42] there. Uh with you know, with respect to [3:45] the specific uh topic of uh of of of the [3:49] NSA and what we've learned the NSA has [3:52] been doing in our name without telling [3:54] us uh [3:56] we've learned thanks to Edward Snowden. [3:58] You know, I I think the the the basic to [4:00] me the basic issue is that to have a [4:04] functioning [4:05] and healthy democracy [4:08] I think you need two things. [4:10] You need transparency from the [4:12] government [4:13] and you need privacy for the citizenry. [4:16] We need to know what the government is [4:17] doing so we can hold those who uh who [4:20] represent us accountable [4:22] and we need to have privacy so that we [4:24] can have the freedom to develop our uh [4:28] our own intimate lives, our [4:29] associations, and our political ideals [4:32] without fear that the government is [4:34] looking over our shoulders. [4:36] But it But I worry uh that in the [4:39] uh modern era [4:41] we've essentially uh [4:43] flipped that. [4:45] Uh with the government insisting on [4:47] secrecy for itself [4:50] and transparency [4:52] uh from all of us. [4:53] Uh and so what I find most troubling [4:55] about the disclosures that we have uh [4:58] we've seen over the last several months [5:00] is that we have learned that the NSA has [5:03] engaged in [5:04] dragnet surveillance, gathering up [5:07] massive amounts of information about [5:09] people who have nothing to do with [5:11] terrorism whatsoever, including all of [5:13] us. [5:14] Including all of us. [5:16] Secondly, that they've done that in [5:18] secret [5:19] uh [5:20] through secret interpretations of laws [5:23] whose authors, when they learned that [5:25] this was what the NSA was doing, said [5:27] this was nothing that I ever authorized. [5:31] Jim Sensenbrenner, a Republican, very [5:33] conservative from the House who who [5:35] drafted the the provision of the Patriot [5:37] Act that the NSA then used in secret to [5:40] gather all of our phone data. He said [5:43] that was never contemplated by the by [5:46] the law that I drafted. And then [5:47] finally, [5:49] we have a government [5:51] that not only engages in secret again to [5:54] to gather data on innocent Americans and [5:56] innocent foreigners as well, but then [5:59] lies to us about it [6:02] to keep us from knowing that. [6:04] So, James Clapper, who you saw briefly [6:07] in the introduction there, was asked [6:09] under oath in Congress, "Are you [6:12] collecting data on millions of [6:13] Americans?" [6:16] And what did he say? [6:17] He said, "No." [6:19] He later said that that was the least [6:21] untruthful answer that he could give. I [6:23] can think of two more truthful answers. [6:26] One would have been yes, that would have [6:29] been the truthful answer, and another [6:30] would have been I can't confirm or deny, [6:32] which is what the government often says. [6:34] But he didn't do that. Instead, he chose [6:37] to lie to Congress, to lie to the [6:39] American people. [6:41] Why? [6:42] Uh presumably, he may well have had good [6:45] intentions, but it certainly is [6:47] interesting to me that now that we know [6:49] about this program, [6:51] every branch of government that [6:52] previously said it was fine has begun to [6:55] question it, and it's it's likely to [6:57] end. [6:58] General Hayden. [7:01] Couple of things were mentioned there [7:02] that I'm sure rang in your ear. Secrecy [7:05] over transparency. [7:06] We have flipped the common understanding [7:09] of [7:11] privacy and security, that there is [7:13] dragnet surveillance that the government [7:15] has intentionally and in a premeditated [7:17] way lied about. [7:19] Your response. [7:19] Yeah, there there's there's a lot to [7:20] unpack there, uh Major. But first of [7:22] all, [7:23] I want to suggest that, you know, we [7:25] aren't two alien life forms up here. We [7:28] we come from the same political culture, [7:31] and actually we're pretty good friends. [7:33] Uh [7:35] But these are very difficult issues [7:37] in which we as a free people [7:39] are not trying to decide between good [7:41] and evil. We as a free people are trying [7:43] to balance values. [7:45] Okay? Values that are sometimes very [7:47] competing. Major, I I'd come at it this [7:49] in in in two ways, but there are lots of [7:51] lots of things to talk about. Um [7:54] I've I've taken in the last couple of [7:55] weeks to kind of describing the dilemma [7:56] we're in as as as a triangle. [7:59] All right? And and when we're all really [8:01] happy, it it is a very content, [8:04] harmonized, equilateral triangle in [8:07] which all of the sides are are are the [8:09] same length. And the and the three sides [8:11] are [8:13] technology, [8:15] the nature of things that threaten us, [8:18] and our law and policy. [8:21] And what's happening to us [8:23] in recent days, and this isn't new to [8:26] you know, 2014, it's happened before in [8:29] our history, but it's happening at an [8:30] accelerated rate. Those three sides of [8:33] the triangle, those three angles which [8:35] create those sides, [8:37] all three of them are changing per force [8:41] at different rates. [8:43] The threat changes at a certain rate, [8:45] technology changes at another rate, and [8:47] law and policy changes at a third rate. [8:49] And so our, you know, when we're all [8:51] very happy and harmonized and [8:52] synchronized, our equilateral triangle's [8:54] like this and we're all in broad [8:55] agreement. And then when they change at [8:57] different rates, that happy equilateral [9:00] triangle turns into this violently [9:02] grotesque isosceles triangle. [9:06] That creates all sorts of tension. [9:10] And we're in tension until we get that [9:12] triangle back to that equilateral [9:15] balance. Now now the problem becomes, [9:18] Major, and this is and and and David, [9:20] this is the the fundamental issue that I [9:21] think, frankly, that David and I agree [9:23] on, [9:23] is what's the process by we get that by [9:26] which we get that triangle back [9:29] more or less into balance. [9:31] And and that process has been has been [9:34] changing somewhat throughout American [9:36] history. I mean, just as just as a [9:38] matter of fact, not of not of philosophy [9:41] of reality. [9:42] Okay. What we're talking about here is [9:44] surveillance. And and for most of our [9:46] history [9:47] surveillance was the pro- what what was [9:51] was the province of the executive. [9:54] I mean, our first spymaster was George [9:55] Washington as head of the Continental [9:57] Army. And and he gets elected president [9:58] and he wants a covert action budget. He [10:00] wants a secret budget from the Congress [10:04] for his use for covert action. And we [10:06] kept like most democracies really [10:10] the governance, how do you get that [10:11] triangle back to being equilateral [10:14] equilateral? We kept that governance [10:16] within the executive branch until the [10:17] mid-1970s. [10:19] And then with the Church Commission then [10:21] and all the thereuntos pertaining about [10:23] both real and alleged excesses, we [10:26] decided that we needed to bring the [10:28] other branches of government [10:30] into this decision-making process. How [10:33] do you get the triangle back into [10:34] balance? And so we set up congressional [10:36] oversight committees, the House [10:38] Permanent Select Committee, the Senate [10:39] Select Committee on Intelligence, and a [10:41] court, an unusual court, but a court [10:44] nonetheless [10:47] that again joined in the process by [10:49] which we keep these things in balance. [10:51] Uh that was kind of representative [10:53] democracy in action. That was our [10:57] representatives [10:59] working [11:00] to balance the triangle again. And [11:01] what's happened in in recent times, and [11:03] I understand this okay? [11:05] That a good portion of the American [11:07] society now no longer views that process [11:09] I just described our Senate Intelligence [11:12] Committees, FISA Court, Executive Branch [11:15] no longer considers that to be consent [11:18] of the governed. [11:20] There are an awful lot of people out [11:21] there who say, "Okay, you may have told [11:22] Mike Rogers and Dianne Feinstein, but [11:24] you didn't tell me. [11:27] And until you tell me, then you really [11:29] don't have a legitimate uh consent of [11:32] the governed. [11:33] Now, that's that's a a a very [11:35] challenging issue. [11:37] When when I was when I was director of [11:39] CIA, [11:41] I had a civilian advisory board with [11:43] some really prominent Americans on it. [11:44] And one of them was Carly Fiorina, [11:46] formerly of Hewlett-Packard. And I gave [11:48] Carly and her subcommittee a very [11:49] difficult problem. [11:52] It was this. [11:53] Seeing this, this is pre-Snowden. [11:55] Carly, [11:57] I've been wondering, [11:58] will America be able to conduct [11:59] espionage, which after all depends on [12:01] secrecy? [12:03] Will America be able to conduct [12:04] espionage in the future inside a broader [12:06] political culture that every day [12:10] demands more transparency and more [12:12] public accountability from every aspect [12:14] of national life? [12:16] Carly and her team went away, studied [12:17] the problem, came back about 4 months [12:19] later. They're in my conference room [12:20] across the the hall from my 7th Deck [12:23] office at Langley. I walk across, I sit [12:25] down. Okay, Carly, will America be able [12:27] to conduct espionage, more transparency, [12:29] more public She looks me right in the [12:31] eye and she says, [12:32] "We're not sure." [12:33] Okay. Which is a very profound answer. [12:37] And And that's where we are. [12:39] Okay. How much transparency, how much of [12:41] your personal participation in the [12:43] decision-making process will you demand [12:47] to get that triangle back into an agreed [12:49] balance? [12:50] And at what cost in the capacities for [12:53] which we had the triangle in the first [12:55] place, [12:56] which is fundamentally stealing other [12:58] people's secrets? [13:00] All right, I want to bring this to a [13:01] practical level. [13:03] Um [13:05] David, I've [13:06] dealt with this issue a lot at the White [13:07] House, and I've listened to countless [13:09] briefings from all sorts of people [13:11] within the White House and intelligence [13:13] community apparatus. And one of the [13:15] things that they often tell us, and I [13:17] want your opinion on this, as a matter [13:18] of judging security, the law, and [13:21] privacy. [13:22] Metadata, they say, is all of this [13:25] data, numbers, and locations. [13:29] That by itself is not equivalent to [13:32] eavesdropping, [13:34] recording, or transcribing any [13:36] conversation, intent, or anything like [13:38] that. It is sifted in a vast [13:42] analytical way using algorithms and [13:44] other [13:46] forms of [13:48] intelligence sifting to call in very [13:51] fast action those things which might set [13:54] off [13:55] legitimate intelligence clues or links [13:58] to clues. And then everything else falls [14:00] out. [14:01] And the fact that the vast majority, [14:03] they say, falls out [14:06] makes this much less of a security and [14:08] pri- a much less of a privacy and [14:09] constitutional issue than those [14:12] from your perspective would represent. [14:15] How do you respond to that? [14:17] Um well, you know, the the this is this [14:19] is the the constant mantra. I'm I'm just [14:22] distilling it. I I I believe I've done [14:24] so faithfully. I'm not I'm not [14:25] describing myself to it, but that's what [14:26] I hear every day. So, it's a great [14:28] question, right? What you you saw it in [14:30] uh President Obama, "We're not listening [14:32] to your phone calls. We're not listening [14:35] to the content. We're just collecting [14:37] the metadata, which means [14:39] who you called, when you called them, [14:42] how often you called them, how long you [14:44] talked uh for. [14:46] Uh that's all we're collecting, just the [14:48] metadata. So, you shouldn't need to [14:50] worry about it. Well, [14:51] you know, I I I take my cue from uh a [14:54] former general counsel of the NSA, [14:57] Stewart Baker, who said [14:59] on this question, "Metadata absolutely [15:03] tells you everything about somebody's [15:05] life. If you have enough metadata, you [15:07] don't really need content. It's sort of [15:10] embarrassing how predictable we are as [15:12] human beings." [15:13] And and and that's the the thing is, you [15:15] know, with with metadata, we they can [15:18] know when When called your girlfriend, [15:22] When you called your ex-girlfriend. When [15:25] you called your parents. When you called [15:27] your children. [15:28] Uh when you called Alcoholics Anonymous. [15:32] When you called a drug rehab center. [15:34] When you called your drug dealer. When [15:36] you called your political party. They [15:38] know all of that. They can connect up. [15:40] Who are your closest friends? Who are [15:43] you most closely associated with? Who do [15:45] you talk to all the time? Who do you [15:46] talk to only sometimes? Uh that's a [15:49] tremendous amount of information that [15:51] they can get. And we got it from General [15:53] Counsel of the NSA himself. We don't [15:55] even need content if we can get [15:58] metadata. And And let me just add [16:01] the pro- the program that we've all been [16:03] talking about is a phone metadata [16:05] program. [16:06] But the law under which the NSA gathered [16:09] this [16:10] is not a law that limits to phone [16:13] company and phone data. It's a law that [16:15] allows the government to get any [16:18] business records [16:20] on anybody. [16:21] And And their interpretation, literally [16:23] anybody and everybody. And so they could [16:26] get [16:27] email [16:28] uh records, who you've emailed, uh uh [16:31] who who's emailing you, what what um [16:34] websites you're uh searching, what [16:37] searches you put into Google. All of [16:39] that goes to businesses, which then have [16:42] those records, and under the NSA's [16:44] theory of uh how American law should [16:47] run, they can get any and all of that [16:49] information because it might happen that [16:52] at some point some of it might be useful [16:55] uh to try to find a terrorist. Uh to me, [16:58] that's dragnet surveillance at its [17:00] worst, and the distinction between [17:02] content and metadata really uh [17:05] is erased. Is erased. And this is all [17:08] done under the Foreign Intelligence [17:09] Surveillance Act, and the Foreign [17:10] Intelligence Intelligence Surveillance [17:12] Court is the secret court that weighs [17:16] as I said, in secret. [17:19] The legal justification for [17:22] putting together a search of metadata [17:25] linked to a person or persons, and then [17:28] gives it an okay or not okay, and it is [17:31] on a time limit. [17:32] General Hayden, [17:34] you can find out all these things David [17:36] just said about me, about David, about [17:37] anyone in this audience. [17:40] That is a function of operational [17:42] capability. I'd like you to talk about [17:45] whether you're comfortable with that [17:46] operational capability. If so, why, and [17:49] how often is it used in the ways that [17:51] David described? [17:52] Yeah. First First of all, David's [17:54] description of what you can do with [17:56] metadata, and quoting a mutual friend, [17:58] Stewart Baker, is absolutely correct. [18:01] Okay? We kill people based on metadata. [18:06] But that's not what we do with this [18:07] metadata. [18:10] Okay? [18:10] Thankfully. [18:13] Wow, I was working up a sweat there for [18:15] a second. [18:17] It's really important to understand the [18:20] program in its entirety. [18:23] Not the potentiality [18:25] of the program, but how the program is [18:27] actually conducted. So, NSA gets phone [18:30] records, gets them from the telephone [18:32] company, been getting them since October [18:35] of 2001 under one one authority or [18:37] another, puts them in a lockbox, to use [18:40] a phrase that was popularized a few [18:42] years ago, [18:43] and under very strict limitations can [18:46] access the lockbox. What it cannot do [18:50] are all those things that that David [18:51] suggested that allows someone to create [18:55] your social network, your social [18:57] interactions, your patterns of behavior. [19:00] One could make the argument that that [19:02] may or may not be useful. One can make [19:03] the argument that may or may not be [19:05] legal, but it's not done. NSA does not [19:08] launch powerful algorithms against this [19:10] domestic database [19:12] in order to see inherent patterns not [19:14] visible to the casual observer. It [19:17] doesn't do that at all. Here's what it [19:19] does do. [19:21] When NSA has what it's called a dirty [19:23] number, a seed number is how NSA refers [19:26] to it. And a seed number almost [19:28] universally is a foreign number. [19:31] And it's a number that NSA has a [19:33] reasonable articulable suspicion [19:36] is affiliated with Al-Qaeda. So, you [19:38] roll up a safe house in Yemen, you get [19:40] somebody with pocket litter that [19:42] indicates he's a member of the cell you [19:44] thought was there, and he's got a cell [19:46] phone. Now, this is a new cell phone [19:48] number. [19:49] What you get to do against that ocean of [19:52] data that NSA has admittedly collected, [19:54] your phone bills and mine, [19:56] what you get to do is kind of [19:57] figuratively yell through the transom [19:59] and say, "Hey, [20:00] anybody in here talk to this number here [20:02] in Yemen?" [20:05] And frankly, if a [20:07] number out there near Fells Point says, [20:09] "Well, yeah, I got to do that about once [20:11] a week." [20:12] NSA gets to ask that number in Fells [20:14] Point, "So, who the hell are you talking [20:16] to?" [20:18] At which point [20:19] this program is over. [20:21] That's all that's authorized to be done [20:24] with the metadata. [20:26] The last year for which NSA has full [20:28] statistics, [20:29] they got the yell through the transom [20:31] 288 times [20:34] with foreign seed numbers they had [20:36] reason to believe were affiliated with [20:38] Al-Qaeda. By the way, that permission to [20:40] yell through the transom is confined to [20:42] fewer than two dozen people at Fort [20:44] Meade, all specially trained and all [20:46] whose keystrokes are monitored to make [20:48] sure that everyone is doing this [20:50] according to the FISA court direction. [20:52] 288 times they yelled through that [20:54] transom and said, "Hey, anybody here [20:56] talk to this phone number I think's [20:57] affiliated with the terrorist?" [21:00] And in those 288 inquiries, [21:03] 6,000, a total of 6,000 over the course [21:06] of a year, US numbers were implicated [21:10] for further examination, but further [21:13] examination separate from this program [21:15] and under law enforcement authorities [21:17] and and court orders under the Federal [21:19] Bureau of Investigation. So, in this [21:22] debate, it's important to distinguish [21:26] what might be done with what is being [21:29] done. I mean, if you if you if you if [21:31] you take the argument that if it might [21:33] be done, then I should assume it [21:35] is being done and therefore I oppose it, [21:37] uh that's a pretty powerful argument for [21:39] disarming your local police force. [21:42] It's not a way a mature people should [21:45] look at balancing how they want to [21:47] defend themselves and preserve their [21:49] liberties. [21:50] Let me introduce a name that was raised [21:52] earlier that is probably familiar to [21:53] just about everyone in this audience, [21:55] Edward Snowden. Now, General Hayden, you [21:57] just said [21:59] potentiality and reality should be [22:01] distinguished between and what you can [22:03] do and what you operationally do are a [22:05] distinction worth investigating. [22:07] I think you would also be willing to [22:09] admit, maybe begrudgingly, that we [22:11] wouldn't be having this conversation, [22:12] this symposium would exist, but we [22:14] wouldn't be participating if it were not [22:17] for [22:19] the [22:20] unauthorized disclosure of the vast [22:23] array of NSA activities [22:26] which [22:28] were known by a select few members of [22:30] Congress, were known by the intelligence [22:32] community, were known by the President [22:33] of the United States, [22:35] but were not known [22:36] by those of us who cover the White House [22:38] or the general public. And that to have [22:40] this mature debate in the vacuum [22:44] that existed before, meaning a vacuum of [22:47] knowledge where nothing existed, would [22:49] have been impossible. [22:50] And you have on the program that you and [22:52] I were on together, Face the Nation, and [22:54] I was [22:55] lucky enough to substitute for Bob [22:56] Schieffer, you came close to labeling [22:59] Edward Snowden a traitor. How can it be [23:01] traitorous to kick off and initiate a [23:03] debate that is obvious [23:05] obviously of interest to this audience [23:07] and millions of Americans across the [23:08] country. Yeah, um you've got to First of [23:10] all, to make a judgment [23:13] First of all, to make a judgment about [23:14] Snowden, you've got to look at his [23:15] actions in their entirety. But let's [23:16] start with [23:18] the narrow slice that you raise. [23:21] Freely admit uh Edward Snowden [23:22] precipitated a debate that frankly was [23:24] inevitable, but he certainly [23:26] precipitated it. He certainly misshaped [23:28] it as well. And I can talk about [23:29] misshaping all you want as we go [23:31] forward. But I don't understand what the [23:33] civil liberties quotient of telling the [23:35] world that Menwith Hill Station was used [23:38] to intercept the satellite phone call of [23:40] Dmitri Medvedev during the uh G20 [23:43] meeting in London. I don't understand [23:45] the American civil liberties quotient of [23:47] his revealing that the United States may [23:49] or may not have penetrated computers in [23:50] the People's Republic of China. I don't [23:52] understand the American civil liberties [23:54] quotient of what it is the United States [23:55] may or may not have done against foreign [23:57] leaders. And I I can go through a whole [23:59] series [24:00] That's strike she was malicious. [24:01] More than 95% [24:04] of the information revealed through the [24:06] Snowden dossier has nothing to do with [24:09] your privacy. [24:11] What it has done is made it much more [24:13] difficult for your intelligence services [24:16] to defend you. [24:18] Okay. [24:19] Well, we'll we'll take that as an [24:20] answer, but let me follow up and then I [24:21] want to bring David into this and to [24:22] respond. [24:24] But [24:26] there is now a change in the president's [24:28] approach to this. He no longer wants the [24:30] phone companies to store this data He [24:32] wants the phone companies to store the I [24:34] I right, once once it well no longer [24:35] wants the NSA to to store it uh in a [24:38] retrievable, nearly permanent basis. [24:41] Once it Once it go back to the phone [24:42] companies, it's a live issue before [24:44] Congress. [24:45] On those issues [24:47] the president wasn't initiating the [24:48] debate, the intelligence community [24:49] wasn't initiating the debate, nobody who [24:51] was in central operator was initiating [24:53] this debate. And as the president has [24:55] admitted on the record numerous times, [24:57] this technological [25:00] expansiveness was growing on his watch. [25:03] And he was quite happy about it. [25:05] Yeah. [25:06] This this technological ability to catch [25:08] more and more things, sift them faster, [25:11] analyze them more critically [25:13] was a wondrous thing, all done in [25:14] secrecy. [25:17] Identifying that alone, do you not find [25:19] anything praiseworthy in what Edward [25:21] Snowden initiated? [25:22] I'm not I'm not going to go out of my [25:24] way to praise young Mr. Snowden. All [25:26] right. Um by the way, all right? [25:29] The president in his proposal isn't [25:33] trying to fix any abuses. [25:36] I mean, he's made that quite clear. [25:38] You know, this is being done just the [25:39] way he wanted to be done. And it had not [25:41] been [25:41] Just stored differently. It had not been [25:43] used for any other purpose. I mean, he [25:46] he has been explicit. [25:49] I mean, when he made the speech after [25:51] his commission reported to him, he [25:53] essentially said this program is [25:55] effective, this program is lawful, this [25:58] program has not been abused, and now I'm [26:01] going to recommend we change this [26:02] program. [26:04] And and it followed [26:06] he wanted to change the program to make [26:08] you feel more comfortable about it. I [26:10] get it. That's fair enough, but it's not [26:12] because it was wrong or misused or was [26:15] abusing your rights. He just wants you [26:18] to be more comfortable about it. Look, [26:20] when I was down the road here at NSA, [26:22] I used to think there had to be three [26:24] things to be sustainable in the American [26:26] political culture in [26:28] our espionage services. Technologically [26:31] feasible, [26:33] operationally relevant, it was possible, [26:35] it was useful, [26:36] and lawful. [26:38] Okay? By the time I got to CIA, my [26:40] little Venn thing here with [26:41] technologically feasible, operationally [26:43] relevant, and lawful, I realized I'd I'd [26:45] lost one Venn [26:48] oval in that, and that was politically [26:50] sustainable. [26:51] The president gets to do one-offs with [26:54] raw Article 2 authority and narrow [26:56] lawfulness. [26:58] Okay? [26:59] No president, [27:00] no matter how popular or unpopular, gets [27:02] to do a program over a sustained period [27:04] of time without that fourth oval, [27:07] politically sustainable. [27:09] Major, the president's doubling down on [27:12] the program. [27:13] He's all in. [27:15] And in And the trade-off for being all [27:17] in is to keep the phone records in the [27:19] hands [27:20] of the phone companies so that you're [27:22] comfortable with it. [27:24] That [27:25] Make no mistake, [27:27] he liked the program, and what he's done [27:30] is continue it. [27:32] David, I've given you like a like a full [27:34] field of things to deal with here. [27:37] And I want you to take them in the order [27:38] you find most important and have at it. [27:41] Yeah. [27:42] So, uh the president is not doubling [27:44] down. Uh Snowden uh is in is a criminal [27:48] and a hero. [27:50] Uh and uh [27:52] uh General Hayden's description of the [27:55] uh NSA program that the president has [27:57] now said he will end was uh very anodyne [28:00] and I think uh quite misleading. [28:02] Um so, uh to take the last one first, [28:05] you shouldn't be concerned because, you [28:07] know, the government's not really [28:09] looking at these numbers. It's just [28:10] collecting all your numbers, and it's [28:12] only looking at them 288 times. [28:15] Um [28:16] Well, [28:18] the uh [28:19] the a a a court and the president's [28:22] review board that looked at this program [28:24] and examined it found that each query [28:27] each query can generate a million phone [28:31] numbers. If you assume that somebody [28:33] called 100 people over 5 years, which is [28:37] fair assumption, [28:39] and you assume that the the NSA with one [28:41] phone number can get every phone number [28:44] that communicated with the seed number, [28:47] and then every phone number that [28:49] communicated with a phone number that [28:50] communicated with the seed number. And [28:52] then any number that communicated with [28:55] those. [28:56] You quickly get to about a million phone [28:58] numbers. What do they do with those [29:00] phone numbers? They put them in what [29:01] they call the corporate store. [29:04] The corporate store. So they have [29:05] millions. In just one year they have 288 [29:09] million phone numbers in this corporate [29:12] store. There's only [29:13] about what? [29:15] 300 million of us. [29:17] So they've got a lot of our phone [29:18] numbers right in the corporate store. [29:19] And then what are the limits on their [29:21] ability to look through that corporate [29:22] store? [29:23] None. [29:24] Zero. [29:26] That corporate store, there's no [29:27] reasonable suspicion requirement. [29:28] There's no requirement to go back to [29:30] court. None. So I'm not so, you know, I [29:34] don't think it's such a [29:35] a program that we need not be concerned [29:37] about. General Hayden also said there [29:39] was no abuse. The abuse was that the [29:42] government was doing this [29:45] in our name without our approval. That [29:48] was the abuse. And and then lying to us [29:53] so that we could not check them on what [29:55] they were doing. Of course political [29:57] sustainability has to be a core of what [30:00] a government agency does, General [30:02] Hayden. In a democracy, that's what it's [30:05] about. Technical feasibility, [30:09] sure, but if it's not politically [30:10] sustainable, you shouldn't be doing it [30:12] as a representative of the American [30:14] people. Um whether this is a fact [30:17] whether this program was effective. [30:18] Well, [30:19] uh you know, there've been claims that [30:21] it was effective. But the privacy uh and [30:24] civil liberties oversight board, an [30:26] executive um a congressionally created [30:29] executive appointed independent board [30:32] that got access to all of the data [30:36] and interviewed all the people involved [30:38] in this program found [30:40] that in seven years of collecting all of [30:43] our phone data, [30:44] the NSA did not stop a single terrorist [30:48] plot, [30:49] did not bring a single terrorist [30:52] criminal to justice. [30:54] There was one case, only one case that [30:57] they could point to, where they [30:59] identified a criminal, a {quote} [31:01] terrorist criminal through the NSA [31:03] program. [31:04] And what was that? It was somebody who [31:06] gave tried to send $3,000 to a a group [31:10] in Somalia that's a terrorist group in [31:12] Somalia. That's it. For seven years of [31:16] collecting all of our phone data. I [31:18] don't call that terribly effective. If [31:20] you're balancing liberty and security, [31:23] privacy and security, I you don't have [31:25] much on the security side of the aisle. [31:27] Was it necessary? Was it necessary? [31:29] Well, if it was necessary, I would [31:32] expect the president to be insisting on [31:34] continuing the program. But instead, he [31:36] has ended the program. He has called for [31:38] ending the program. Here's what the [31:39] program was. It was that the NSA could, [31:43] on a single court order, collect all of [31:45] our phone records, [31:47] keep them for five years without any [31:50] suspicion about any of us, and then [31:52] without ever going back to a court, they [31:54] could troll through it when their own [31:57] people determined that they had [31:58] reasonable articulable suspicion about a [32:00] particular phone number. That's a very [32:02] low level [32:04] of [32:05] uh suspicion. That's the suspicion that [32:06] a cop needs to stop someone and ask him [32:08] a couple questions on the street. [32:10] But they didn't have to go back to a [32:12] court at all. They had needed no court [32:14] order, and they were able to collect all [32:15] of our phone data. Under what President [32:17] Obama has proposed, [32:19] the NSA will collect none of our phone [32:21] data, [32:22] and they will only be able to search [32:24] when they first go to a court and [32:26] demonstrate that they have a justified [32:28] reason for conducting a specific search. [32:31] That's the way the Fourth Amendment was [32:33] designed to work. [32:34] Uh that's the way law enforcement works. [32:36] That's the way intelligence works under [32:38] the Foreign Intelligence Surveillance [32:40] Act. That's the way the NSA should have [32:41] been working, but it wasn't until Edward [32:44] Snowden told us what was going on and [32:46] suddenly everything has changed. And uh [32:48] on Edward Snowden, you said he's two [32:49] things. Uh He's a criminal and a hero. [32:52] He could He clearly committed a crime. [32:53] I'm not going to I'm not going to deny [32:55] that he committed a crime. He He had [32:57] access to this information on the uh [33:00] condition that he not disclose it. Um [33:03] that's true of lots of whistleblowers. [33:06] They You know, they commit crimes. There [33:07] It's not the case that they're not [33:09] criminals. [33:10] But it's also can be the case that at [33:13] the same time they commit a crime, they [33:15] can do an awful lot of good. And I think [33:17] a situation in which you've gone from a [33:20] system of purported checks and balances [33:22] in which the president, the courts, and [33:25] Congress have all allowed something to [33:27] go forward as long as it's secret, as [33:29] long as the American people don't know [33:30] about it. And then as soon as the [33:32] American people learn about it, the [33:33] president says we should end it, a court [33:35] says it's unconstitutional, uh and [33:37] Congress has about 35 bills pending to [33:40] reform it. Uh that suggests that there [33:42] was some real good done by the [33:44] disclosure. Couple of footnotes to what [33:46] David just said. The uh NSA Inspector [33:48] General did find instances, not under [33:51] practice, but committed nevertheless, of [33:55] messing around in this metadata. [33:56] The the loveint uh Yes. Well, and and [33:59] and that's not in the metadata. [34:00] Not in this program, but but they did [34:01] loveint and they found plenty of [34:04] violations The the there's plenty of uh [34:07] FISA court opinions uh finding [34:10] many, many violations because of the way [34:13] in which the program was set up, etc. I [34:15] will agree with General Hayden that we [34:17] haven't seen uh you know, a J. Edgar [34:21] Hoover bugging [34:23] uh you know, Dr. Martin Luther King and [34:25] threatening to expose secrets unless he [34:29] uh you you leaves the leaves uh gives up [34:32] fighting for for civil rights. We [34:34] haven't seen that yet. I will give you [34:35] that. Uh but I don't think that's all [34:38] that we need to be concerned about uh in [34:40] a country that that values privacy. [34:42] other thing I would point out covering [34:43] the White House on a daily basis, there [34:44] has been a contraction in the [34:46] expansiveness of the president's own [34:48] rhetoric about what this [34:49] surveillance has actually achieved. He [34:51] started saying dozens of terrorist plots [34:53] foiled. [34:55] That doesn't show up in his rhetoric uh [34:57] with any frequency anymore. And now it's [34:59] harder and harder to get the president [35:00] to say actually in public that this did [35:03] in fact stop terrorist plots. I know [35:05] General Hayden you believe [35:07] the referee just moved the football on [35:08] me. I'm I Well, go ahead then. I [35:11] I thought you're supposed to be in the [35:12] middle. No, I'm no I'm just telling you [35:14] what the president's I'm just I'm just [35:15] talking about observing the president's [35:16] rhetoric and the a visible contraction [35:20] down from saying things [35:22] which he once did with confidence that [35:24] that upwards of 50 terror plots have [35:26] been foiled. [35:27] 50 includes both this program and the [35:28] 702 program, the e- email program. [35:31] Right. And he no longer says that. And [35:32] one of the reasons he no longer says [35:34] that is because his own and this is a [35:36] congressionally mandated board plus the [35:37] other one he put together questioned [35:40] just how many times this type of [35:42] surveillance operationally [35:45] thwarted terrorist plots. You believe it [35:48] did. No, I No, I what I what I'm telling [35:51] you is it was a very useful intelligence [35:53] tool. All right? And And And if you're [35:56] going to tell me I only get credit if [35:58] this program leads to me tackling [35:59] somebody about ready to chamber around [36:01] on the rooftop, then I fully admit No, [36:04] we we didn't do that. All right? But it [36:06] adds to the intelligence picture and it [36:08] adds [36:09] distill for this audience what its value [36:11] is. If If you would argue and contend [36:14] that it's a false metric to say this [36:16] data stopped this plot from happening [36:19] saving x number of lives, what would you [36:21] argue is [36:22] Sure. is the way to measure [36:24] Yeah. its utility against the [36:27] Constitution and privacy. [36:28] Well, let me give you one way to measure [36:30] it, all right? [36:31] If Barack Obama could have canceled this [36:33] program in his first month in office, if [36:36] he could have done it in conscience, [36:37] he'd have canceled it at the speed of [36:39] light. [36:40] Because he was trying to put as much [36:41] distance between himself and his [36:43] predecessor as he could. And so, to me, [36:47] one one of the almost intuitive [36:48] endorsements of the program was that [36:50] this president who so much campaigned on [36:53] being not the other president said, "You [36:55] know, I want to keep this around." But [36:56] let's let's do get to something [36:58] as it was secret. Well, And as soon as [37:00] it was out in public, he said, "Let's [37:01] get rid of it." Which is what he's done. [37:03] David, I'm I'm going to challenge get [37:05] rid of it, all right? So, what he's done [37:06] is NSA will no longer hold I'm I'm I'm [37:09] First, let me apologize. I'm going to [37:10] pull you through a cryptologic knothole [37:12] here because the details matter. Okay? [37:15] NSA was gathering the data. But it was [37:17] mostly because the program began with me [37:20] at the National Security Agency in 2001, [37:23] it was mostly landline stuff that was [37:26] being brought in. As our communications [37:28] patterns have changed from landline to [37:30] cell phone. [37:31] And and cell phone [37:33] represents, in terms of doing this with [37:36] it, as billing records, a far greater [37:38] challenge than the old landline system [37:41] did. The percentage of your phone [37:44] records ending up in NSA got smaller [37:48] each year that went by. So, that by the [37:50] time we get to this current chapter, NSA [37:54] is getting not 100% of [37:57] phone bills in the United States, but [37:59] somewhere between 20 and 30%. [38:02] Okay? Now, what the president's new [38:04] proposal does say I'll tell you what. [38:06] To make you comfortable, to make sure [38:08] you don't have any fear that there could [38:10] be any potential abuses, I'm not going [38:13] to let NSA keep the stuff. I'm going to [38:15] let the phone companies keep the stuff. [38:17] But I'm still going to have a system by [38:19] which I can query it. [38:21] And I'm going to let NSA form questions [38:23] in the president's bill, David, you're [38:25] right, through the court. In the house [38:27] bill, not through the court. But when [38:30] the president frames allows NSA to frame [38:33] the question, [38:34] NSA gets to address through the [38:37] telecoms, [38:38] through the telco providers, [38:40] 100% [38:42] of the data. [38:44] In other words, [38:46] this new program has made what existed [38:49] before far more comprehensive than it [38:52] has ever been in the past. And the [38:54] trade-off for that is you should feel [38:57] more comfortable because the government [38:59] doesn't possess the data in any way that [39:01] would then allow any potential abuses to [39:04] occur. There There There are a bunch of [39:06] other things out there. Um you talked [39:08] about violations. There was a headline [39:11] in the in the Washington Post last [39:12] August. Bart Gellman wrote the story. Uh [39:15] NSA internal report records thousands of [39:18] violations per year. [39:20] If If you If you go through and parse [39:22] Bart's story, and if you know a little [39:23] bit of the background, it's it's really [39:25] interesting. He He catalogs 3,600 [39:28] uh violations in the course of a year. [39:31] Which of course [39:32] tracks a lot of headlines. [39:34] Uh [39:34] when you read it, 2/3 of the violations [39:36] were what NSA called roamer. So, NSA is [39:39] on a foreign phone number. Let's just [39:41] say it's Pick your foreign country. It's [39:43] in Pakistan. [39:45] It's covering a foreign cell phone. [39:47] Unbeknownst to NSA, that cell phone [39:49] comes back into the United States. [39:51] Or comes into the United States. [39:54] It makes a phone call from the United [39:55] States, but for billing purposes, it [39:57] goes back to its telecom provider in [39:59] Karachi. [40:01] Otherwise, they don't get their money. [40:03] And then that phone call then comes back [40:05] into the United States for its intended [40:07] recipient here, looking every inch in [40:10] the world like it's coming from outside [40:12] this country. And only Only over time [40:16] does the physics of the intercept or the [40:17] content of the call tell when NSA oh [40:21] that foreign guy with that foreign phone [40:23] is now in the United States and [40:25] therefore it's protected by by our [40:27] fourth amendment. It is illegal for me [40:29] to collect on that phone. In two-thirds [40:32] of the violations, it was that roamers. [40:35] There's another violation that the [40:37] Gellman article listed. Said that there [40:39] were 160 instances [40:42] where NSA had put too broad search terms [40:45] in into already legitimately collected [40:47] foreign intelligence. And those search [40:49] terms then because they were too broad [40:51] brought back information that should not [40:53] have been brought to the attention of [40:55] the analyst thereby squeezing the [40:56] privacy of both US and non-US persons in [40:59] the database. 163 times that happened in [41:03] the course of a quarter [41:04] in that year. [41:06] That would be 163 times over 63 million [41:10] inquiries. [41:11] So let me give you an alternative [41:13] headline for Bart Gellman's story. [41:15] Alternative to NSA violates [41:18] privacy thousands of times a year. The [41:21] alternative headline is NSA damn near [41:22] perfect. [41:25] So we need to keep these things in [41:27] perspective as we go forward. That's [41:30] probably a scary headline for you. Well, [41:32] no. I I [41:33] I'd be great in the sense that it would [41:34] be accurate but also uh [41:38] Yeah, perfect and numerical to your [41:40] sensors. Perfect knowledge perfect [41:42] knowledge of of everything that we do. [41:43] That's that's the goal here. Perfect [41:45] knowledge of everything that we do. I [41:47] you know, I I I don't think that was the [41:49] headline for the FISA court judge who [41:51] was so disturbed by the violations of [41:55] his own order that he for a period of [41:58] time required NSA to go to a court each [42:02] and every time it conducted a query [42:03] because he was so disturbed by the [42:06] by the violations that had gone on [42:08] under his [42:10] on on [42:11] under the terms of his of his order. So, [42:14] and as to whether or not [42:16] President Obama is basically just making [42:19] us feel better [42:21] and in fact really doubling down and [42:23] getting 100% where he got 30% it's true [42:26] that over time because of cell phone use [42:30] the percent that the NSA was getting [42:32] dropped but it's also true in the same [42:34] story the NSA said, yeah we understand [42:36] that problem and we'll be back up to [42:38] 100% in no time. Number one [42:41] and number two the basic difference [42:44] is the difference between dragnet [42:45] surveillance [42:47] and targeted surveillance and that's the [42:49] that's the difference that our [42:51] Constitution has long drawn. The Fourth [42:54] Amendment was adopted out of a concern [42:56] that we don't want the government to be [42:58] able to just get everybody's information [43:00] or have access to everybody's [43:02] information and then you know [43:04] decide on its own who it wants to [43:06] actually search. What we want instead [43:09] we're not against surveillance nobody's [43:10] against surveillance or intelligence [43:12] what we want is targeted surveillance [43:14] targeted intelligence where you show [43:16] that you have a basis for acting and you [43:19] show an independent entity that you have [43:21] a basis for acting before you intrude on [43:24] somebody's privacy and that's what [43:26] President Obama's new program would do [43:28] that's not what the NSA program did it [43:30] intruded on all of our privacy without [43:33] any showing that any of us were engaged [43:35] in any kind of wrongdoing [43:37] kept it for 5 years and then searched [43:40] through it on the on the say-so of of [43:43] executive officials without ever going [43:45] to a court. Forgive me I'm going to [43:46] invoke a TV term here for a second the [43:49] run of show of the evening we got to [43:50] talk to a kind of a late start and we're [43:51] having such a great time up here and I [43:52] think you are too. So we're going to go [43:54] for a while but I want to let everyone [43:56] know that now if this iPad works and I'm [43:59] able to use it [44:01] two very important distinctive issues uh [44:05] I'll start taking questions that you [44:06] have submitted and arrive to me here, [44:08] and as I wait for those questions to [44:10] come in, let me just put something [44:11] before the two of you. [44:14] Cuz it sort of goes to the heart of what [44:17] people's expectations are. [44:19] David and the new general, is there [44:23] an implied right to privacy in these [44:27] kinds of communications that is [44:30] inviolable? [44:32] I mean, do we have a constitutionally [44:34] protected right and assumption of [44:36] privacy? Cuz there's a Supreme Court [44:37] case on this that I know General Hayden [44:39] will invoke in a moment that suggests [44:41] otherwise. Where do you come down on [44:43] that and what should this audience know [44:45] about the legal sinews of that question? [44:47] Yeah, this is a great question. Um uh [44:50] and and I think, you know, I don't I [44:53] actually don't think the the law is is [44:55] settled on on this. So, [44:57] back in the day, [44:58] uh before Al Gore invented the internet, [45:01] uh the the Supreme Court adopted a rule [45:05] that said, "If you share information [45:07] with a third party, [45:09] uh you assume the risk you voluntarily [45:12] tell your friend, for example, that you [45:14] committed a crime, you voluntarily [45:16] assume the risk that he's going to go go [45:18] turn around and tell the government that [45:20] information. So, you don't have a [45:21] reasonable expectation of privacy in [45:23] information that you share with your [45:25] friend, and that means the government [45:27] can, you know, ask your friend to tell [45:29] them, it can put a wire on your friend, [45:31] it can put pressure on your friend to [45:33] tell them, et cetera, et cetera." And [45:34] the government does that, right? [45:36] Um that has was then applied to um bank [45:41] to to phone to phone metadata. When you [45:43] make a phone call, the government the [45:45] the court said, "You tell the phone [45:47] company who you're calling and for how [45:49] long because they need that for billing [45:51] information, and therefore you've shared [45:53] that with a third party and therefore [45:54] the government can get that from the [45:57] phone company without invading an [45:59] expectation of privacy. [46:01] You know, in the modern digital age, [46:03] that [46:04] principle no longer holds. And I think [46:07] many, many people across the political [46:09] spectrum have begun to recognize, [46:12] including Supreme Court justices, that [46:14] it just no longer makes sense. Why? [46:17] Because everything we do [46:20] today [46:21] shares information with a third party. [46:23] Every time, you know, when I walked into [46:25] this room with my smartphone, I was [46:28] sharing with Verizon that I'm here with [46:31] General Hayden. [46:33] Uh when when I uh search the web, I am [46:37] sharing with Google my interests. When I [46:41] read an article online, I'm sharing with [46:44] whatever uh the both these this the [46:46] online subscriber service and the uh the [46:49] the the producer uh that I'm reading uh [46:52] that information. Should the government [46:54] be able to get all of that data, your [46:57] location data, your phone contacts, your [47:00] emails, your uh your your Google [47:03] searches? Should they be able to get [47:05] that without any showing that that [47:08] there's any basis for suspecting that [47:10] you've engaged in wrongdoing? I don't [47:12] think so. I think we have an expectation [47:14] of privacy, and I think there's a real [47:16] difference between voluntary my [47:17] voluntarily telling Major Garrett or or [47:21] or General Hayden something [47:23] uh and my, you know, living in the [47:25] modern world in which you can't you [47:27] literally can't exist without [47:29] at every moment sharing information with [47:31] a third party. I don't think that should [47:33] mean the government should have it have [47:35] it. And I think this the Supreme Court [47:36] in a case just 2 years ago on GPS data [47:39] showed that it's uh beginning to [47:42] recognize uh that you can't translate [47:45] pre-Al Gore rules to the post-Al Gore [47:49] world. General Hayden. [47:51] Yeah, um [47:54] first of all, the the things that that [47:55] Professor Cole just described about [47:57] sucking all the brains out of your cell [47:59] phones. I know of no government program [48:00] that does that. All right? So, what [48:02] we're talking about here is what we [48:03] talked about earlier, which is your [48:05] telephone metadata. And and Major's [48:08] right. The Supreme Court decision 1979, [48:10] Smith versus Maryland, 5 to 3. [48:13] There is no constitutional, [48:15] which is different than maybe a [48:16] limitation in law, but there is no [48:18] constitutional expectation of privacy [48:22] with regard to those kinds of records in [48:24] law enforcement. It's called pen [48:25] register uh trap and trace. And so, [48:27] that's uh what was used. Now, that's [48:30] really important [48:31] because after 9/11, [48:34] uh I had to testify in front of a a [48:36] joint inquiry commission. There's a [48:38] picture on the cover of Time magazine, [48:40] probably spring of '02, [48:43] with me, Bob Mueller, and George Tenet [48:45] with our right hands in the air. And the [48:47] joint inquiry commission was a [48:49] combination of the House and Senate [48:51] Intelligence Committees. What went wrong [48:54] for 9/11? [48:56] All right? [48:56] And I actually was rereading it last [48:58] night, not for purposes of this, but [49:00] just by by happenstance. [49:02] The criticisms of the JIC, the Joint [49:04] Inquiry Commission, of NSA, [49:08] and the criticisms in 2002 of NSA, [49:10] looking back on the 2001 attacks, was [49:13] simply [49:14] NSA showed far too much caution [49:19] with regard to terrorist communications, [49:22] one end of which [49:24] was in the United States. [49:26] And that the NSA had to be simply far [49:29] more aggressive [49:31] in tracking down [49:34] and detecting and monitoring those [49:36] calls. [49:38] The metadata program, because of Smith [49:40] versus Maryland, because of [49:49] Mhm? No. [49:55] Because it wasn't constitutionally [49:56] protected. Because it was a field in [49:59] which you had a little more room to run. [50:01] We believe that it was the lightest [50:03] possible touch on American privacy that [50:06] we could devise. [50:08] And still respond to the needs [50:10] articulated by your elected [50:12] representatives as to what it is we had [50:15] to do better to defend [50:18] you. [50:20] Okay. Good. Uh excellent. [50:22] I would just say if that's what NSA [50:24] thought the lightest touch was [50:25] collecting every person's every uh phone [50:28] data then the NSA is a little bit out of [50:31] touch with what the lightest touch uh [50:33] would be. [50:34] first of all [50:34] not that's that's uh [50:37] number one. Number two, you said, "I [50:39] don't know of any government program [50:40] that's sucking up all this information." [50:42] Well, in fact, the NSA is under 702 [50:46] collecting massive amounts of location [50:48] data from cell phones around the world, [50:51] uh address books and contact lists [50:54] wherever it can get them from foreign uh [50:57] sources. It is collecting the contents [51:00] of every literally every phone call from [51:04] one country. We haven't been told what [51:05] that country is, but from one foreign [51:07] country every phone call and then they [51:09] can search through it when they want to. [51:11] Now, [51:12] that's not our it's not our data, it's [51:14] not our phones, it's not our uh [51:17] locations, etc. At least most of the [51:19] time it's not, but sometimes we're [51:21] talking to those people, number one. And [51:23] number two, those people have privacy [51:26] rights, too. [51:27] And if we say, "Well, we want to protect [51:29] our privacy rights, but not the privacy [51:31] rights of anybody else." then what's to [51:33] stop [51:35] the the British intelligence or the [51:37] French intelligence or the German [51:39] intelligence the Russian intelligence [51:40] from gathering from us [51:42] all of the exact same stuff and saying, [51:45] "Well, there's no problem with that [51:46] because you're doing it to our people, [51:49] so you don't have no basis for objecting [51:51] if we do it to you. I think we really [51:53] need as a as a as a as a world, and this [51:56] is what you see in the European debate, [51:59] to agree upon some limits [52:03] on [52:04] spy agencies around the world using the [52:09] new technology to spy not on the, you [52:12] know, the bad guys, the leaders, the [52:14] foreign agents. That's expected. [52:17] But on you and me. [52:19] Okay, [52:20] real quick cuz I want to get to these [52:21] questions, General Hayden. Keep in mind [52:23] the distinction David made. [52:25] Everything he just described is foreign, [52:28] not domestic. Has to do with legitimate [52:30] foreign intelligence targets, not with [52:33] US persons, which is a broad definition [52:35] that includes more than just [52:37] more than just citizens of the United [52:39] States. And I I should add, David asked [52:42] the question, what is to stop those [52:44] other nations from doing those kinds of [52:46] things against you? And the legitimate [52:47] answer is absolutely nothing. And that's [52:50] a problem and we shouldn't play into [52:52] that. [52:53] services do. This isn't a rated movie. [52:56] It's for adults. Nations conduct [52:59] espionage against other nations. One [53:02] additional thought, okay? Because it's [53:04] it's woven its way into the dialogue and [53:06] I I should have mentioned it earlier [53:08] about guilt and innocence and suspicion [53:12] and suspicionless and so on. Those are [53:14] law enforcement terms. [53:16] Those are not intelligence terms. [53:19] Intelligence doesn't listen to just bad [53:22] people. [53:24] Intelligence listens to interesting [53:25] people. [53:27] Intelligence listens to people whose [53:29] communications contain information that [53:32] help keep you safe and free. [53:36] They don't have to be guilty of anything [53:38] to be a legitimate foreign intelligence [53:41] target. Well, that really worries me, [53:42] General. The greatest ambition of my [53:43] life is to be bad and interesting. [53:47] Um we're going to get to your questions [53:48] here in just a second. Uh [53:50] but I want to [53:52] uh tell you a a quick story. I just got [53:54] back from the president's trip to [53:55] Europe. The last stop we made was in [53:57] Saudi Arabia. And I want to just tell [53:59] you a couple of quick stories about that [54:00] trip that are I hope in some small way [54:02] illuminating to this technology [54:06] and how surveillance has its own [54:09] portability, if you will. [54:11] We were in Saudi Arabia. I was not in [54:12] the White House pool that day, so I [54:14] wasn't with the president when he went [54:15] to see King Abdullah in his desert [54:18] kingdom hideaway. But several reporters [54:20] were, and one of them was a good [54:21] colleague, friend of mine, uh Carrie [54:23] Budoff Brown of Politico. And she [54:25] happened with her smartphone to take [54:27] pictures inside the compound where King [54:31] Abdullah was seeing the president. She [54:33] posted those on Twitter, and within [54:36] about 10 minutes had 8,500 new Twitter [54:39] followers. [54:40] All from Saudi Arabia. Why? [54:43] Because they are completely unaccustomed [54:45] in that country to seeing anything [54:47] approximating an impromptu photo of the [54:50] king. [54:52] She was unwittingly [54:55] a surveillance actor for people in the [54:57] Saudi Arabian kingdom who followed her [54:59] on social media and wanted to see if [55:01] there might be more pictures of the king [55:03] in a somewhat unguarded, non-ceremonial, [55:06] completely hatched moment. Now, it was a [55:08] semi-hatched moment because these things [55:10] always are, but that's just an indicator [55:12] of how that information [55:15] had a value, had almost like a [55:17] surveillance value in the Kingdom of [55:18] Saudi Arabia. Now, let me tell you a [55:20] slightly more interesting story from [55:21] Brussels. [55:23] I think you'll all find this somewhat [55:24] fascinating. [55:25] It's in a bar. [55:27] There's a colleague of mine who is an [55:29] attractive producer for a network. She [55:31] was approached by someone who was in the [55:33] security forces [55:35] uh [55:36] in Brussels. [55:37] And let us say he was kind of flirting [55:39] with her. [55:40] So, they became Facebook friends. [55:43] Then they left, she left the bag on the [55:44] bus, go to the plane. [55:46] On the way to to the plane on the White [55:48] House bus, [55:50] she gets a Facebook message from this [55:52] gentleman's wife [55:54] who follows him on Facebook [55:56] relentlessly, saw that he had friended [55:59] this [55:59] attractive woman, and immediately said, [56:03] "Did my husband tell you he's married [56:06] and has a child?" Which completely [56:08] freaked out this person. And let's say [56:11] as my my 17-year-old son would say, [56:13] harshed her mellow. I mean, it just like [56:14] completely [56:16] froze out the moment. [56:18] I only raise that because it was in [56:22] a sort of odd way publicly visible [56:25] operational surveillance [56:27] in real time [56:29] of of genuinely innocent human [56:32] interaction. Technology now creates the [56:35] literal bandwidth for people to act in [56:38] ways that they never could before, maybe [56:40] on their suspicions, maybe on their [56:41] hunches, but it does, it seems to me, [56:44] create [56:46] a different context as we think about [56:48] these issues. And it brings to the two [56:49] questions that were here from the [56:51] audience. One, to you, uh, David. [56:55] Questioner asked, "Why should I care [56:56] that the government knows I called my [56:58] mom and emailed my professor? We should [57:00] not have anything to hide." Secondarily, [57:05] "What should private actors like Google [57:07] or Facebook that mine data for [57:09] commercial purposes, how does that fit [57:10] into this debate? Are they also privacy [57:14] predators?" I put that before both of [57:15] you. David, you want to start? [57:17] Yeah, so, um, you know, I I I think [57:20] that, um, privacy is a critically [57:23] important value even if you have nothing [57:26] to hide. I think the I'm not alone in [57:30] thinking that. The founders of our [57:32] Constitution uh [57:34] put it in the Fourth Amendment uh [57:37] into the Constitution because they [57:38] understood that to have a free society, [57:41] you really do need to have some space [57:44] where you can [57:46] uh engage with others [57:49] uh whether in intimate relations or in [57:51] political dialogue and discourse. [57:54] Uh and that without that, there is no [57:57] such thing as a free society. That's [57:59] why, you know, George Orwell's 1984 has [58:02] the TVs that are watching you uh all the [58:05] time. Uh that's the that's the the the [58:07] sort of the the um the symbol of a kind [58:11] of uh fascist society, of a totalitarian [58:14] society where they want to know [58:15] everything about you and they don't give [58:17] you any space [58:20] to dissent, any space to develop, any [58:23] space to have your own relations without [58:26] having the government over your [58:29] uh uh shoulders. So, uh you know, I I I [58:31] I think privacy is important for those [58:33] reasons and it remains just as important [58:36] today as it was uh before the before the [58:40] internet and before the smartphone. We [58:42] have to construct new rules to preserve [58:46] our privacy from the kind of threats [58:48] that major stories uh illustrate, from [58:51] indeed from, you know, Google and and [58:54] and and Yahoo and and the like as well. [58:57] In Europe, there's a much greater [59:00] sensitivity to this concern. [59:03] Um in part because you know, many of [59:06] them [59:07] uh their grandparents lived through [59:10] what the Nazis did with access to [59:13] private information, and it wasn't [59:15] pretty. And so and they know therefore [59:17] that this is incredibly important to [59:19] keep personal data personal, to keep it [59:22] private, and they have very strict [59:24] restrictions [59:26] not only on the government's ability to [59:27] get access to your information, but also [59:29] on private companies' ability to use [59:32] that information, trade that [59:34] information, collect that information. [59:36] They can't can't do that unless they get [59:39] your specific approval for each use. Uh [59:43] it drives Google crazy. [59:45] Um because that's Google's business [59:47] model. Um but I think, you know, we may [59:49] have to start thinking about that if we [59:51] want to maintain uh privacy uh in a in [59:54] in the modern digital era. And I for one [59:56] certainly want to, and I think, you [59:58] know, most of us do. Most of us still, [60:00] you know, close our bedroom door. Most [60:02] of us password protect our computers. [60:04] Most of us don't want have have some [60:07] kind of privacy [60:08] uh uh [60:09] uh [60:10] provisions on our Facebook accounts. We [60:12] don't want the whole world to know [60:14] everything about us, and we certainly [60:16] don't want the government to know [60:17] everything about us. General Hayden, [60:18] real quick. [60:19] Yeah, violent agreement on David's first [60:20] point. Um the argument that, "Hey, I [60:22] don't mind you listening to my phone [60:23] calls. I have nothing to hide." is not [60:25] an argument for this. And you don't know [60:27] anybody who does this for a living [60:29] claiming that that's a good argument. [60:31] It's it's a horrible argument. [60:33] As as Americans, we deserve that private [60:35] space. [60:36] All right. [60:37] Um the second point about what private [60:39] sector does in terms of gathering [60:41] information, it's a really powerful [60:43] question, and one in which we are we are [60:45] decidedly undecided uh as a people. You [60:47] know, where is that line that we [60:49] continue to negotiate between ourselves [60:51] as private individuals and as public [60:54] individuals. And that that's shifting on [60:56] us in ways that are that are very [60:58] challenging. By the way, Major, [61:00] that makes it very hard. Remember that [61:02] triangle thing I started with? It makes [61:04] it very hard for your security services [61:07] because they they have to divine almost [61:08] on a daily basis where that line is [61:11] because, frankly, [61:13] they are required [61:15] by the Fourth Amendment, [61:17] you know, to to guard to protect you [61:19] against unreasonable search and seizure. [61:23] And because of the shifting line between [61:25] public and private self, that definition [61:27] of reasonable and unreasonable is is a [61:29] moving target. Uh final point about the [61:32] private sector. There was a There was a [61:34] really interesting story, I think with [61:36] Greenwald and that new thing he's got [61:38] with the [61:41] Right, I think it's called The [61:42] Intercept. Um talking about GCHQ, [61:45] uh which is the British equivalent of [61:47] NSA, uh intercepting Angry Birds [61:50] signals. [61:52] Um [61:53] apparently Angry Birds sucks the brain [61:54] out of your iPhones. [61:56] Okay? And sends it back to the Angry [61:59] Birds starship, [62:00] where they gather the data and then sell [62:02] it. So, all those free apps you thought [62:04] you had, uh [62:05] Okay. Uh by the way, if you download a [62:07] free app on the on the on the web, [62:10] you are not the client. You are the [62:12] product. Okay? [62:14] What GCHQ was doing for selected foreign [62:17] intelligence targets was targeting that [62:19] link back to [62:22] back from legitimate foreign [62:23] intelligence targets [62:25] who were stupid enough to download Angry [62:26] Birds as it was sending that information [62:29] back to, like I said, the Angry Birds [62:31] starship, GCHQ was intercepting that [62:33] data. I frankly, it's an intelligence [62:35] stroke of genius. [62:37] That's a really great technique. [62:40] But the real question is, what the [62:42] hell's Angry Birds doing with all that [62:44] data? [62:45] Because it's not GCHQ going out there [62:47] and pulling it out of your cell phone, [62:49] it's those free apps you keep [62:51] downloading. [62:53] Other questions. Uh several along this [62:55] line. Does the threat level change this [62:58] debate? [62:59] I know, General Hayden, operationally [63:01] after 9/11, you revisited this issue and [63:05] dramatically, or if not dramatically, [63:07] you intensified the search. And you [63:09] mentioned the criticism of the NSA [63:11] post-9/11. [63:12] The president frequently says, David, [63:14] that the threat remains real, it is [63:17] changing. It is moving geographically. [63:20] He gave a huge speech at the National [63:21] Defense University saying that not only [63:23] his administration, but any [63:24] administration of either party that [63:25] comes after that after his [63:27] administration is going to have to deal [63:28] with smaller, more more mobile, but [63:31] still malevolent cells within al-Qaeda [63:33] or affiliated or sympathetic units. [63:37] And that tracking them [63:39] is going to be a government imperative [63:41] to achieve, if not near not perfect [63:44] security, at least near perfect [63:46] security. Does the threat level change [63:49] fundamentally this debate? [63:51] Well, I think the threat level affects, [63:53] sure, it it affects the balance. You [63:55] know, if there's a if you're if at the [63:57] broadest level, we're balancing [64:00] privacy and liberty and autonomy against [64:02] security, the greater the threats are to [64:04] security, the more it may make sense to [64:07] uh give up some liberty, some um [64:11] privacy, some autonomy if it in fact [64:13] make us more secure. So, if you live in [64:15] an in a war zone, [64:17] you know, you expect that you're not [64:19] going to have the same kind of privacy [64:20] as you do in in a free society. So, [64:23] yeah, it it it it makes a it makes a [64:25] difference. I think the key to me though [64:26] is um that we uh we as a society draw [64:31] that balance. That we strike the [64:32] balance. That we make a a you know, a a [64:35] reasoned and informed decision about [64:38] where to strike the balance. And what I [64:39] think is most troubling about the [64:41] Snowden disclosures is that what we've [64:42] learned is that the government has been [64:44] striking this balance without [64:46] uh telling us in a in a lot of ways that [64:49] once we learn, we're not very happy [64:52] about. And there's something [64:53] fundamentally wrong about that. General [64:54] Hayden? Yeah, absolutely. I mean, I'll [64:56] go back to the language of the Fourth [64:57] Amendment. We are guarded We are [64:59] protected against unreasonable search [65:01] and seizure. Reasonableness is a product [65:03] of the totality of circumstances in [65:05] which we find ourselves. So, clearly [65:07] that line changes based based upon [65:09] threat. There's There's no no question [65:11] about it. And do you believe, and we've [65:13] had a conversation about this, that the [65:15] nature of the threat will continue to [65:18] change and test the limits [65:20] Yep. of both surveillance through data [65:24] and other ways, human intelligence, [65:26] satellite intelligence, etc. [65:28] Now, you know, we we need to be careful [65:30] here, all right? We we we have we have [65:32] we have looked at the 215 program. [65:34] That's the metadata program. And 90% of [65:36] our talk here has been on 215. Snowden [65:39] revealed a whole bunch of other stuff, [65:41] which is subject to debate. The 215 [65:44] program, unarguably, [65:46] is tied to terrorism. There is no other [65:50] legal justification for it. Terrorism [65:53] threat goes up, [65:54] that should go up. Terrorism threat goes [65:56] down, that goes down. Other programs, [65:58] 702 is one that David mentioned earlier. [66:01] That has to do with email content, [66:03] foreign, but housed on American servers. [66:06] That's not just terrorism related. [66:09] It's quite clear that it has to do with [66:10] proliferation, with terrorism, and with [66:13] cyber threats. So, there's another body [66:15] of circumstances that affect the legit [66:18] the legitimacy of that. My old community [66:22] has erred in trying to justify too many [66:25] of the things it does based strictly [66:28] upon the terrorist threat. [66:30] But in this case, the 215, the metadata [66:32] program, that's it. That's the only [66:34] justification. We're going to get to [66:36] closing statements now. David, I want to [66:37] ask you in your closing statement to [66:39] describe for this audience, articulate [66:41] if you will, if not a perfect world, a [66:44] world of balance that you find [66:47] that you'd be comfortable with legally [66:49] to weigh and balance these threat versus [66:52] constitutional versus privacy issue. And [66:54] if you would amend or intensify the [66:56] president's proposal on this, describe [66:58] how. And if you're comfortable with it, [66:59] describe why. [67:01] Oh my god. That's That's a closing [67:03] statement? [67:04] Uh that's another another evening's [67:06] discussion. I I you know, I guess my my [67:09] my bottom line is that these are hard [67:12] questions. [67:14] That I don't think anybody even the most [67:16] ardent civil libertarian is against [67:19] surveillance. [67:21] Is against spying. [67:23] Is against searches. [67:26] I think you know, what I'm against [67:29] is dragnet [67:32] spying, dragnet searches by which I mean [67:36] situations in which the government is [67:38] gathering information without [67:40] showing that it has a need for this [67:44] based on what the person is doing. [67:48] And that's what we've seen [67:51] far too much of both with respect to the [67:54] local metadata program and with respect [67:57] I think to the 702 program. When you're [67:59] collecting literally every the contents [68:02] of every phone call [68:05] from a from a foreign country. [68:07] You're that's that is the definition of [68:09] dragnet surveillance. That is [68:11] disturbing. The second thing that's [68:12] disturbing to me [68:14] is the secrecy that has surrounded these [68:17] programs and that secrecy I think it's [68:20] it's it's been demonstrated and one of I [68:22] think probably the [68:24] the most important lesson Edward Snowden [68:26] has given us [68:27] is that you can set up all the checks [68:29] and balances in the world within the [68:32] government. [68:33] Having to go to a court, having to tell [68:36] the the members of Congress, having a [68:38] president who's elected by the people. [68:40] You can have all that. [68:43] But it's not going to work if at the end [68:45] of the day the American people had [68:47] literally no idea what is being done. [68:50] Because what we've seen here is that [68:52] once the American people before the [68:54] American people knew what was going on, [68:56] all those entities lined up and said [68:59] this program is fine and once it became [69:01] public every one of those entities [69:03] changed its behavior in a significant [69:05] way. [69:06] Uh publicity and transparency about what [69:08] the government is doing is is critical. [69:10] And yes, secrecy is important for [69:12] surveillance and for espionage and the [69:14] like, but it's also important to know [69:16] that the government is following limits [69:18] that we are are comfortable with. And [69:21] until this era, we we had that. Under [69:24] the Foreign Intelligence Surveillance [69:26] Act, we knew what the general [69:27] constraints were on the government. Uh [69:29] and then the third thing that I find [69:31] just [69:33] absolutely unacceptable is the [69:34] government lying to us [69:36] uh about what it's doing. Uh and and and [69:39] and uh Mr. Clapper's uh statement in [69:41] Congress uh being the the the principal [69:43] example. That's just That has to be [69:45] unacceptable. Uh he's never been called [69:48] to account for it. Uh that's that I [69:51] think is is just is a travesty. Uh so, [69:54] you know, I I'm not against [69:55] surveillance. I'm against dragnet. I'm [69:57] against secrecy. And I'm against [69:59] American government officials lying to [70:01] the American people. General Hayden. [70:10] Yeah, lots lots lots of things to [70:13] uh to discuss here at the end. I'll try [70:14] to be very uh [70:16] very brief. [70:18] We need to be be precise. These are [70:21] highly emotive issues. But we need to [70:23] think through, and I I apologize again [70:25] for drawing you through very very [70:28] detailed specific things about how this [70:29] is done. But frankly, without that kind [70:31] of knowledge, it's very difficult to to [70:34] make the the correct kinds of decisions. [70:36] Let me let me just give you a uh a [70:38] couple of couple of broad [70:39] considerations. Um [70:42] David mentioned about mass surveillance [70:44] and and and so on. [70:46] There is actually a distinction [70:49] between bulk collection and mass [70:51] surveillance. [70:53] They are different things. [70:55] And I I just ask you to when you hear [70:58] bulk collection, do not automatically [71:00] assume [71:02] that it's mass surveillance. They can be [71:03] quite They can be quite different. So, [71:05] don't don't confuse those two things. Uh [71:08] David mentioned that it was a shameful [71:09] thing that someone is collecting all the [71:12] all the telephone calls in in in one [71:14] country on Earth, and I'm able to say [71:16] what I'm going to say now because I have [71:17] no idea what country that is. [71:20] But, I would feel differently about it [71:21] if it were France [71:23] or if it were Afghanistan. So, facts [71:25] matter. Details matter. That the blanket [71:28] statement isn't that awful may may not [71:31] apply. [71:32] David mentioned the need for more [71:34] transparency. I agree. I'm there. I I [71:37] understand we That's what we have to do. [71:39] By the way, those little four Venn [71:41] circles there were were political [71:42] sustainability is one thing. Political [71:44] sustainability and lawfulness are not [71:46] the same thing. You know, there there [71:48] are times when things are unpopular [71:51] but are right. [71:52] But, over the long term, that democracy [71:55] does need when it does these kinds of [71:57] things, it does need the broad support [71:59] of its people, and therefore my old [72:01] community is going to have to be [72:03] markedly more transparent than it has [72:06] been in the past. We get it. No, I Trust [72:10] me, I've met with folks still in [72:11] government. They understand. What you [72:13] have to understand [72:15] is that there is no way [72:17] that increased transparency does not [72:20] shave points off of operational [72:22] effectiveness. There is a cost, [72:26] an operational cost, in making more of [72:29] this stuff more public to more people. [72:32] You just have to understand that in [72:34] order for you and to use David's words, [72:36] in order for you to be a bit more [72:37] comfortable, you are indeed going to be [72:39] a bit less safe. That's just the way it [72:42] is. [72:43] One final point. It's two or three times [72:45] now we brought up Jim Clapper. I would [72:47] have answered the question different [72:48] from Jim. All right? Uh but, Jim's a [72:51] good friend and an honest man. [72:53] And it was a horrible answer to frankly, [72:57] and here's the new news, a really [72:59] horrible question. [73:01] Ron Wyden knew the answer to that [73:03] question. [73:04] Everyone on that dais, every member of [73:07] that committee, knew the answer to that [73:09] question. Everyone sitting behind every [73:12] member of that committee, all those [73:14] Senate Select Committee on [73:16] Intelligence staffers, knew the answer [73:19] to that question. That question had been [73:21] briefed to them multiple times [73:24] in closed sessions. What Jim should have [73:26] said was, "We'll take it to closed [73:28] session." He didn't. [73:31] But Senator Wyden doesn't get a free [73:33] pass, either. [73:35] If he wanted Jim Clapper to commit a [73:37] felony [73:38] and reveal something that at that point [73:40] was appropriately classified, Senator [73:43] Wyden should have just acted like a man [73:45] and revealed it himself, [73:48] rather than trying to trap a career [73:50] public servant into what for him would [73:53] be a criminal act. This thing cuts two [73:55] ways. And with that, we will conclude [73:57] our evening. David has a 10:10 train to [74:00] catch, and I want to make sure he [74:01] catches his train. Give it up for both [74:03] of these excellent participants. It's [74:06] been a pleasure to be your moderator. [74:07] Thank you very much. I know we went [74:08] long. Indulge us for that, but thanks [74:10] very much. [74:11] Can we get one more round of applause [74:13] for all three participants in tonight's [74:15] debate?