Controversy Over The Scope And Oversight Of Domestic Surveillance

MS. DIANE REHM

10:06:56
Thanks for joining us. I'm Diane Rehm. An attempt to defund an NSA surveillance program was narrowly defeated in the House last week, but the surprisingly close vote reflects growing momentum among both parties to rein in domestic spying. That comes in the wake of recent leaks by former NSA contractor Edward Snowden. Joining me to here in the studio, Cong. Justin Amash, Republican of Michigan, Michelle Richardson of the ACLU, Michael Hirsh of National Journal magazine, Siobhan Gorman of The Wall Street Journal and Stewart Baker, an attorney at Steptoe & Johnson, former NSA general counsel.

MS. DIANE REHM

10:07:51
I invite you to join in, call us, 800-433-8850, send us your email to drshow@wamu.org, follow us on Facebook or send us a tweet. Welcome to all of you.

MS. SIOBHAN GORMAN

10:08:09
Thank you.

MS. MICHELLE RICHARDSON

10:08:09
Thank you. Thank you, Diane.

ATTY. STEWART BAKER

10:08:09
Thank you.

MR. MICHAEL HIRSH

10:08:09
Thank you.

REHM

10:08:10
Good to have you here. Siobhan, if you could start with you. What do see as the message of last week's vote on the amendment to defund the NSA's telephone data collection program?

GORMAN

10:08:25
Well, I think the message is that we probably will see some sort of changes ahead when it comes to the handling of the surveillance programs by NSA. However, the changes could be large, or the changes could be small and probably on the smaller side given that they'll have to gain White House support. So there are a number of changes that are on the table, particularly, you know, declassifying portions of the orders from the secret surveillance court, the FISA court, or refashioning this phone records collection program to instead have an NSA search the records at the phone companies as opposed to taking all of the data itself.

REHM

10:09:12
How do you explained the unlikely political alliances that showed up in that vote.

GORMAN

10:09:21
Well, they're not wildly different from what we saw actually a little bit earlier this year around the drone program as well when Senator Paul was really pressing the administration to explain its legal rationale for killing suspected terrorists who are Americans overseas. And what you do see particularly with some of these national security issues is a uniting of the left and the right around some of these more libertarian types of issues.

REHM

10:09:53
And, Michael Hirsh, to you, what do the latest polls tell us about how the American public is feeling?

HIRSH

10:10:03
Well, according to the latest Pew Research poll a bare majority about 50 percent are still essentially OK with these types of surveillance programs, but you do see a shifting tide in public opinion over concern about the extent and of the program and how well they're monitored and how indiscriminate the sweeping up of data is. And I think, you know, that's what you see reflected also in the congressional vote last week, and what we're likely to see in debates going into the fall.

HIRSH

10:10:40
So it does appear to be something of a creeping effect that probably has a lot to do with a great deal of misunderstanding still on the part of the public about what exactly the NSA is doing. I mean this is what Congress itself is debating now. Even among many members of Congress, I don't think there's a good understanding yet of what these programs entail.

REHM

10:11:02
And, Michelle Richardson, into what extent do you think that Edward Snowden and what he did has become a game changer here?

RICHARDSON

10:11:17
Yeah, absolutely. The leaks have created a sea change here. There has long been opposition to the Patriot Act, but it was more on a principled level. And now that the public and Congress can see in black and white these court orders that say every American is sucked up. It's not just people overseas. It's not just suspected terrorists, but it's all of us. And it's really changed the opinion up on the Hill.

RICHARDSON

10:11:42
So you see something like the Amash amendment, and you see people like Rep. Sensenbrenner who helped write the original Patriot Act come forward and say that's not what we intended. We didn't think you were going to use it that way. And so you see a lot of Republicans and people who are considered to be traditionally conservative say that the program needs to be reined in somewhat.

REHM

10:12:02
So, Stewart Baker, as a former counsel for the NSA, the president has now called for a public debate on these issues. Is that debate going to really take shape in a way that will help us better understand the issues involved?

BAKER

10:12:27
I'm worried that it won't. I think we've seen this movie before. This is what happens in the second term of Democratic presidents. Conservative Republicans start to think that the organs of power being abused, and they're not gonna be able to vote against the guy again so they want to use something like the courts to make an objection to the kinds of things that the president is doing.

BAKER

10:12:53
And he's very tempted to do things with executive authority. We saw this in the late '90s as well, and it is a kind of reaction to the president that you see on the right that I fear is mixing up IRS abuses, the fast and furious, and all of the scandals of the Obama administration and then dumping them on the national security establishment, which I think is unfortunate.

REHM

10:13:23
Michael Hirsh, have we seen any indication that the information released by Edward Snowden has in someway harmed our whole secrecy program? What have been the results if any?

HIRSH

10:13:46
Well, you know, it's interesting I was just talking with a Russian official about this yesterday about the extent to which, you know, Moscow, Russia, of course, with its own very formidable intelligence establishment would be at least trying to follow the activities of the NSA, the whole raison d'etre of the NSA when it was created in 1954 was, of course, to deal with the Soviet Union. So I think that there's a sense that we don't really know what damage was done yet and what damage could still be done based on further information documents that Edward Snowden has.

HIRSH

10:14:26
There's a very good chance now that he's going to be granted and will accept asylum in Russia, and there's also a very good chance that he has been debriefed by the FSB, which is the, you know, the successor to the KGB. And I think we have to wait and see. There are some indication that perhaps he doesn't know everything, but I mean perhaps Siobhan knows more than I do about this, but I don't think we know yet.

REHM

10:14:52
Siobhan.

GORMAN

10:14:53
Well, I think in terms of damage done, there are certainly concern among lawmakers and others in the U.S. government that Mr. Snowden did provide his -- some of his information to the Chinese or the Russians that may end up being a moot point if all of it ultimately becomes public. But what you have heard officials say so far is that they see terrorists starting to change their tactics or trying to evade detection in some sort of way.

GORMAN

10:15:22
However, they haven't provided any specifics so it's hard to judge whether this is sort of a significant shift in tactics on the part of various adversaries of the United States or whether it's -- these are small things that kind of happen from time to time.

REHM

10:15:37
Michelle.

RICHARDSON

10:15:38
Well, the terrorists assume they're being surveilled, right? You can even go back to 9/11 and the bombers were using code words because they knew that was a possibility. You look at Osama bin Laden. He refused to use phone and other digital communications. Really, the only people here who are surprised to find out they're being spied on are the American people. So I think we would have to push the administration to give real concrete examples here of how this is harming national security.

BAKER

10:16:05
I think that's hogwash, to tell the truth. I mean we know that the guy who was trying to bomb New York City's tunnels had been in touch with somebody who was in touch with by phone with folks in Pakistan, and that's how we were able to identify large chunks of this plot. If he had known how this program works, they wouldn't -- he wouldn't have done that. That he wouldn't have gotten rid of those phones.

BAKER

10:16:33
They would have switched over to different SIM cards. There are plenty of ways that people can address this. They just weren't aware of how far U.S. surveillance could run. And we are gonna suffer significant losses.

REHM

10:16:47
Michael.

HIRSH

10:16:48
And that is I think the issue now and the danger to national security in the future because clearly there's gonna be a very robust debate. There's almost certainly gonna be some sort of change to the way FISA, the Foreign Intelligence Surveillance Act, works in the way the court works. And there's gonna be some sort of additional transparency, and it's gonna be up to the House, the Senate and the White House ultimately when some sort of legislation is passed to ensure that, you know, sources and methods are not revealed in this new push for transparency. It's gonna be a very, very delicate issue that we're gonna see I think unfold in the months ahead.

REHM

10:17:25
Michelle.

RICHARDSON

10:17:26
Well, the court order is now out there, so we can talk about the program that has been released, and the president himself has confirmed, right? The spying on Americans and the mass collection of phone records has been confirmed, and so Congress can deal with that question. But it's also important to point out that this is just one spying tool. Stewart mentioned the Zazi case, but they were already tipped off to Zazi through other leads.

RICHARDSON

10:17:53
And there are many ways to get his phone records or do full wiretaps. You can get national security letters. You can get FISA orders. You can go through the criminal justice system. The question is, is there a more targeted way to do this that focus on suspected terrorists and doesn't sweep the rest of us up in the meantime?

BAKER

10:18:13
This program is targeted. The collection of the data is not the same and I think Michelle is misleading us when she calls it a spying program. The data is collected but not looked at until there's a reasonable suspicion.

REHM

10:18:30
Stewart Baker, he's an attorney at Steptoe & Johnson, former general counsel at the National Security Agency. When we come back, we'll talk further, take your calls, your email. I look forward to speaking with you.

REHM

10:20:05
And welcome back. We're talking about the National Security Agency's spying program, the legislation put forward after Edward Snowden released his information, and now, all the repercussions. One of which, Siobhan, is the government's justification for the collection of metadata under Section 215 of the Patriot Act. Talk about what that is and the debate Stewart Baker and Michelle Richardson are having over how effective or important that is.

GORMAN

10:20:54
Right. Well, this portion of the Patriot Act allows the government to collect so-called business records to -- in the course of an investigation. And what has happened with the NSA program is the stipulation in the Patriot Act is that the business records need to be relevant to this investigation. And so what was surprising to many people with the Snowden revelations was the discovery that apparently all of our phone records are indeed relevant to terrorism investigation and sort of non-specific terrorism investigation.

GORMAN

10:21:30
And what we have learned since then is that the government says, well, we need all of the phone records, all the phone numbers and, you know, the length of the call and, you know, routing information -- although they claim they're not collecting locational data -- in order to be able to run searches when they do, in fact, have a lead. They say they need all of this information in their possession because the phone companies won't keep it long enough and they need to have it all in one place to do an effective, efficient search.

GORMAN

10:22:00
And so that's the debate we're having now is this interpretation that all of our phone records are apparently relevant to do any particular terrorism investigation.

REHM

10:22:10
So, Stewart Baker, why wasn't metadata collection discussed before the NSA began collecting it?

BAKER

10:22:23
Well, they did discuss it in classified circles. But...

REHM

10:22:25
Sure, but not with the public.

BAKER

10:22:28
Well, it's very difficult to discuss this in public without alerting everybody to exactly how the program is working and to what you ought to do to defeat it. So I think the conclusion was reached, which is fair that if we're gonna do effective intelligence, we can't talk about it in public. And instead, we need to come up with a variety of controls and safeguards that are -- that operate in classified space.

REHM

10:22:53
But, Michael, this is not a secret law. It's an interpretation of the law.

HIRSH

10:23:01
Right. Right. And that's what, I think, is being, you know, debated in the Congress. How pubic should the interpretation be? What should be declassified? There are also proposals to put forward a sort of public advocate because one of the things you have here that's sort of very un-American, if you will, in terms of the way the FISA court works is you simply have the government arguing, you know, we need a warrant...

REHM

10:23:24
Right.

HIRSH

10:23:25
...and no one argument has a side. So there are...

REHM

10:23:28
Except the ACLU...

HIRSH

10:23:30
Well, except...

REHM

10:23:30
...perhaps once they finally find out about it.

HIRSH

10:23:34
Maybe years later. (laugh) But that's, you know, that's one of the issues. And I think despite the defeat of this amendment last week, which I think everyone agrees, it was just a big shot across the bow to sort of defund the entire telephone collection program, you're gonna see something more measured that will force more disclosure as well as probably more of an actual sort of court, you know, ordinary court-type hearing for these FISA requests.

REHM

10:24:04
But, Michelle, OK, so the NSA keeps all these records, and then the government goes to the telephone companies and says we want these records. What happens then?

RICHARDSON

10:24:21
Well, they download all of the records every day directly to the NSA's databases, and then they go back and search it. They tell us that we shouldn't be worried because they searched it only 300 times last year. But hearing before the House Judiciary Committee confirmed that that doesn't mean 300 times they put in a single phone number and looked at 300 people's records. They do broadlink analysis and they go out up to three hops.

RICHARDSON

10:24:47
So you're really sweeping in a lot of people who have no nexus to terrorism. And so the real numbers here about how many Americans are swept into the program have not been made public.

BAKER

10:25:00
So every year, ordinary law enforcement agencies submit subpoenas for billing records to the companies. And they submit a million a year, and they scarf up all this information. There are enormous numbers of searches of this relatively anodyne information being looked at, and they've been doing this for 100 years, so as long as we've had billing records. If this was going to result in an enormous intrusion into people's privacy, you would have thought it would have happened before NSA started looking at 300 a year.

GORMAN

10:25:37
Well, but I think the difference is just the aggregation of it. And what people have gotten more concerned about is the idea that you can get, you know, really, all the major billing records for phone calls in the United States of America, you can put them all in a database and NSA has all kinds of unique abilities to do data crunching on these kinds of things.

GORMAN

10:25:57
And so I think that one of the concerns people have is, well, what are the safeguards given that once you give all this data to NSA, then there's a little but more of a trust-me feel saying, well, you know, we have rules in place that say only 22 people at NSA can look at this? Well, but that's because they chose what to do with that program, and they could change those rules at some time.

GORMAN

10:26:19
Now part of it has to obviously be approved by the court, but there is a sense that the so-called checks and balances are all pretty internal to the process. And so once NSA has the data, the checks are a little bit fuzzier.

REHM

10:26:32
Michelle.

RICHARDSON

10:26:33
Well, one of the other things that was leaked over the last couple of months is the minimization procedures. And these are the rules about how you use the information once you collect it, and they've been secret for 35 years. They've sort of been the unicorn of the intelligence community. You know, once you see them, you'll see that we're not abusing you're privacy. There are all sorts of protections here. But now that we've seen them, we know it's riddled with holes. And there are lots of ways to use the information. And not just for intelligence purposes...

REHM

10:27:00
Such as?

RICHARDSON

10:27:02
Criminal investigations. Some of these mass data collection programs can be used for criminal prosecutions. And the presumption is they get to keep and use it unless there's clearly a reason to believe that it's not relevant to anything.

REHM

10:27:17
And, Michael, what you've written is that the problem with these programs is that they've been kept secret for so long.

HIRSH

10:27:29
Yeah. I mean, that is the problem. And we don't know, as was just being said, to the extent there are checks and balances, they're internal to the NSA's procedures. And, you know, there hasn't been any kind of exposure. And I think to lead -- to go into another point, which is what I've also written about, you know, the private sector is very concerned about this.

HIRSH

10:27:52
The major Internet companies, tech companies, telecom companies that have to be concerned about their shareholders and vulnerability to lawsuits, they have, very recently, made a very strong plea to allow -- for the FISA court to allow them to reveal request for data coming from the government, the NSA, which they have not been allowed to do up to now. They haven't been able to speak about their forced participation, if you will, in this program.

HIRSH

10:28:22
So there are a lot of public concerns here that are being expressed by the private sector, by the big Internet companies, tech and telecom companies, as well as by the public and the Congress, which is why, I think, we're gonna, you know, we're getting a real sort of critical mass here of opinion.

REHM

10:28:38
Well, and the question becomes has it been demonstrated, Siobhan, that collection of all this data has really lead to the prevention of any kind of criminal or patriotic action -- non-patriotic action against citizens?

GORMAN

10:29:04
Well, what's interesting is when first asked this question, the intelligence agencies put out some initial statements and started conflating some of the programs 'cause there are two main programs. We've been talking primarily about the phone data collection. There is another program that's under discussion, you know, in the larger public light that Snowden revealed having to do with collection of account information from, you know, major Internet providers, Google or Microsoft, et cetera.

GORMAN

10:29:33
And so what -- the initial answer to the question was, well, there have been 54, you know, terrorist incidents that were foiled because of these programs. And so what we've now been trying to understand over the last few weeks is, well, what proportion of those foiled plots are attributable to the program that collects account information on a more selective basis, and how much is attributable to this sort of boarder collection of phone records?

GORMAN

10:30:02
And when pressed on it fairly recently, Gen. Alexander, who heads up NSA and is obviously in charge of these programs, said that I think it was roughly a dozen or so of the 54 example were attributable to the phone program. But the problem is we still don't know how unique that contribution was, whether that information could have been obtained some other way and also thwarted the attacks.

REHM

10:30:27
And that is the voice of Siobhan Gorman, intelligence correspondent at The Wall Street Journal. We do welcome your calls, your questions, comments. 800-433-8850. You can also send us your email to drshow@wamu.org. And joining us now is Congressman Justin Amash. He is a Republican from Michigan and one of the people who introduced the bill that was defeated by a very narrow margin, that would have halted the NSA's collection of telephone data. It's good to have you here, sir.

REP. JUSTIN AMASH

10:31:25
Thanks so much for having me, Diane.

REHM

10:31:26
Tell me why you felt it important to introduce that bill, and now that it's gone down, what happens next?

AMASH

10:31:36
Well, I think it was critical to have something in the immediate aftermath of these disclosures, and not waiting two or three months, as some had suggested doing. The American people were really upset about this. I've been back in my district several times. I heard about it at town halls and events and across the political spectrum, Republicans, Democrats, everyone in between. So I thought it was critically important to do something now.

AMASH

10:32:03
We got a very good vote, a very close margin. Mr. Sensenbrenner came on board with our amendment, and he was one of the chief authors of the Patriot Act and believe that our amendment was important. Going forward, I think Chairman Goodlatte has the will and determination to bring some things through Judiciary Committee. The Judiciary Committee voted very favorably toward my amendment.

AMASH

10:32:30
If you look at members who are on the Judiciary Committee, it overwhelmingly passed amongst Judiciary Committee members. So I think we'll get some good legislation through judiciary. And John Conyers and I have a bill called the liberty act, and there are many other great pieces of legislation that should be considered.

REHM

10:32:47
How will the liberty act be different from what just went down?

AMASH

10:32:54
Well, it will be more refined because, in this case, we're dealing with an amendment on an appropriations bill. And when you write an amendment for an appropriations bill, it has to be written in a very particular way that's sometimes not as precise as you'd like it to be. So the language would be more precise. So it will be substantive changes to the Patriot Act to make sure that when people are, in the government, are collecting information, it actually pertains to the person who's under investigation.

AMASH

10:33:24
And that's how the Patriot Act was intended. So it has that aspect. And there's also a second part to our liberty act, and that would require more FISA court disclosures so that members of Congress, rank and file members, can have access to these opinions and the public can have access to summaries because we can have a country with secret operations, but we can't have a country with secret law.

REHM

10:33:46
Congressman Justin Amash, Republican of Michigan. And you're listening to "The Diane Rehm Show." Michelle, given what you've just heard, do you think the ACLU is going to react more favorably to what the congressman has just proposed?

RICHARDSON

10:34:12
Absolutely. There are over a dozen bills now introduced in the House and the Senate by both Democrats and Republicans, and we see a sea change coming and members on both sides of the spectrum wanting to rein in the program and force more disclosure.

REHM

10:34:27
And, Stewart Baker, how do you react?

BAKER

10:34:31
I think this is an unfortunate development in Republican politics, and it's, as I said, it's -- it reminds me a lot of the late '90s. That did not end well. We ended up letting our guard down, and we had 9/11. I fear we're bound for the same result if we continue to lay largely irrational restrictions on the intelligence committee.

REHM

10:34:55
What about that, Congressman Amash?

AMASH

10:34:57
Tell my constituents that it's irrational. That's a laughable comment. The American people are outraged about this, and our first duty is to protect the Constitution, to protect liberty. That's why the government is in place, and my constituents believe very firmly in that. People throughout the country feel very firmly in that, and this is a welcome development in Republican politics, and it's here to stay.

HIRSH

10:35:23
Well, I mean, there is a lot of history here and a delicate balance to be achieved. You got to go back to right after 9/11 when the report by both the House and Senate Intelligence Committees -- which included, by the way, Ron Wyden, Democrat from Oregon who's been one of the chief critics of this program -- very harshly criticized the NSA in the aftermath of 9/11 for not doing a better job of dealing with modern technology and even doing domestic surveillance. So this program, to a certain extent, was a response to that.

REHM

10:35:53
And I want to let you all know that AP is reporting that former Virginia Sen. Harry Byrd Jr., who was an opponent of racial integration, who won as an independent, has died. And that is former Virginia Sen. Harry Byrd Jr. As we look at how this program is evolving, Stewart Baker, as you see public opinion changing here, it was pretty much in favor of what the NSA was doing, saying simply, I'm doing nothing illegal. If the NSA wants to catch bad guys, that's fine with me. Now it's changing.

BAKER

10:36:51
It is. The right in particular in the blogosphere has stuck IRS and Fast and Furious and NSA all together...

REHM

10:37:00
And put it all together.

BAKER

10:37:02
…and that's what I think is unfortunate. It's unfortunate that we have the other scandals, and I think they should be investigated. I do not believe that this is a scandal.

REHM

10:37:11
Stewart Baker, he's an attorney at Steptoe & Johnson, former general counsel at the National Security Agency. Short break here. When we come back, it's time to open the phones. Stay with us.

REHM

10:40:05
And it's time to open the phones. First to Warren, Pa. Hello, Al. You're on the air.

AL

10:40:16
First and foremost, I do wanna agree with the gentleman who said that in the United States we need secret programs but not secret laws. That is so true. I am a retired federal geek. I was the guy in the backroom who would, you know, or -- telling people in the backroom what to watch for. And I see no difference between the police with a radar gun watching our interstate highways than the NSA watching our information highways. It's very necessary.

AL

10:40:49
The people who are doing the speed limit, who are staying in the right-hand lane and whatnot as they go whooshing by, they're boring. But it's the people who are carrying mal-information who are doing harm. We need to be able to identify them, to associate them. See where they're coming from and see where they're going to.

REHM

10:41:10
Congressman Amash. Do you wanna respond?

AMASH

10:41:13
Yeah. Absolutely. I agree that we need to be going after those who are trying to do us harm. We have a Constitution that we have to follow, and that Constitution protects those who are not under suspicion from having their information gathered, from having things collected on them. And it's important that we have security in this country while maintaining liberty.

REHM

10:41:36
Michelle.

RICHARDSON

10:41:37
I'm glad you brought up secret law. And this is one area that there may be some agreement around. The New York Times has confirmed that, over the last decade, there have been at least a dozen court opinions, some of them up to a hundred pages long. And they don't only interpret the statute but the Fourth Amendment. And the secret court is making secret rulings and developing a constitutional body of law that we're not allowed to know about.

REHM

10:42:04
Siobhan.

GORMAN

10:42:05
Well, yeah. I think one of the things -- one of the main movements that we're starting to see is whether or not there's a way to have more disclosures about what the decisions are from the Foreign Intelligence Surveillance Court. That's a very strong movement certainly on the Hill and in the public, I think, as well.

REHM

10:42:25
Stewart Baker.

BAKER

10:42:26
Here's the problem. You don't write treatises. You write opinions about particular facts, and you apply the facts to the law and the law to the facts. And so in many of these cases, I'm willing to bet that it is inextricably linked to the legal analysis and the factual discussion, which means that we'll be disclosing or at least hinting out a whole bunch of facts that will help terrorists evade the programs that we have. That's very risky.

REHM

10:42:55
Siobhan.

GORMAN

10:42:56
I think that, while all of those things are true and that's why generally these aren't declassified, what we've seen at this point is a fair amount of disclosure of details, many of which the government has now acknowledged. And so the question is now whether given that there have been so many disclosures, can there be FISA court opinions that are declassified, that at least address the things -- the interpretations of things that we -- facts we already now know.

REHM

10:43:21
Congressman.

AMASH

10:43:22
And let me add that rank and file members of Congress have not had access to these opinions. And that's a real problem.

REHM

10:43:28
Who has?

AMASH

10:43:29
There are -- the administration has access. And members of the intelligence committee can have access. And then it's at their discretion to share that information with other members. Well, we each represent a district with about 700,000 people, and we should have the right and ability to review these opinions because we have to be able to amend the law if necessary.

REHM

10:43:50
Michael Hirsh.

HIRSH

10:43:51
I think, in the end, you know, you're going to probably see heavily redacted versions of some of these court rulings declassified sooner than we're seeing now. It's going to be, as I said before, a balance that will have to be struck because there's no, you know, clear way to resolve this issue. What Stewart says is correct and what the congressman has been saying about -- and Michelle have been saying about the need for public disclosure is also correct. So there's gonna have to be a compromise.

REHM

10:44:18
To Cape Cod, Mass. Hi, Tricia.

TRICIA

10:44:23
Yes. Good morning. I wanted to ask if anybody on your panel was familiar with this. I heard this just this morning on a local radio talk show about a current big brother technology which involves an in-home box that is somehow attached to your TV. You can't see it. And companies like Verizon, that's one of our local companies, are using it.

TRICIA

10:44:50
And it monitors you while you're watching TV with information like if you're arguing -- couples are arguing, if you're cuddling and a whole other list of things that they can monitor. They don't need your permission to install it. And it can already be in place without you even knowing it.

REHM

10:45:07
That sounds pretty far out to me. Do you know anything about that, Michelle?

RICHARDSON

10:45:12
I don't. I haven't heard about that specific technology. But, you know, it does underscore that the phone program is just one of many that the government conducts. And that this record data is incredibly sensitive. And when the court ruled in the '70s that it didn't need a warrant, you know, times have changed over the last few decades. And everything from what you buy, where you go, who you associate with and what you read is now wrapped up in these records, and it's incredibly sensitive.

REHM

10:45:41
All right. To Los Angeles, Calif. Albion, (sp?) you're on the air.

ALBION

10:45:47
Yes. I recently heard an exchange between Daniel Ellsberg and Michael Mukasey, you know, on NPR. And in that, Ellsberg characterized the FISA court as a rubber stamp. I sort of think of the FISA court as a genuine safeguard of the Fourth Amendment.

REHM

10:46:08
The question is how many refusals has the FISA court given to cases put before it, Siobhan.

GORMAN

10:46:19
The answer is that it's a very rare occurrence. And what you hear from people who argue before the FISA court is that that's because there so much self-policing that goes on beforehand. The Justice Department has a very rigorous evaluation process. And oftentimes, they will sort of submit almost a draft to the FISA court and get feedback beforehand...

REHM

10:46:41
Before, I see.

GORMAN

10:46:43
...so that the official verdict is something that is reflective of kind of an iterative process. However, there's a lot of question still about how much the FISA court really pushes back and particularly just whether FISA judges have that much technical knowledge to truly understand the details of these programs because these are judges that are obviously expert in the law. But technology changes so much that it would be very difficult to be up on every single change and to necessarily know what every privacy application would be for the employment of certain technology.

REHM

10:47:17
Congressman.

AMASH

10:47:18
Well, the government's applications are accepted almost 100 percent of the time as we've mentioned. And what some of us would like to see in some of the ideas that have been thrown out there include having some sort of civil liberties advocate involved in the process, someone who would push back and make it into a more of an adversarial process because right now it does operate as rubber stamp.

REHM

10:47:40
Michael.

BAKER

10:47:41
I just think that's wrong. The -- there are safeguards throughout, and people who think their job is to advocate on behalf of civil liberties from the clerks who work for the judges to the judges who are highly sensitive to this criticism, to the Office of Intelligence and the Justice Department to the inspector general and the general counsels in all of the intelligence communities, there's plenty of people who are pushing back on ideas to do anti-terrorism programs. The real question is, who's the advocate for actually catching terrorists?

HIRSH

10:48:16
And I would just say that one of the proposals before Congress is to have, you know, Senate confirmation of FISA court judges in the future as occurs with, you know, senior-level judges. And so you would have more of a vetting there.

REHM

10:48:26
All right. To Paul in Cincinnati, Ohio. You're on the air.

PAUL

10:48:32
Good morning. Thank you for taking my call.

REHM

10:48:34
Surely.

PAUL

10:48:35
First, I'd like to say that I do think we need agencies like the NSA to work to further our security. And I am, I think, a conservative guy, and as a consequence of that, I feel like I do not need to justify my concern about whether my privacy is being invaded and also my concern about how my dollars are being spent, which leads to my main point which is that there is plenty of evidence from the past, from the Battle of the Bulge to the Bay of Pigs Invasion.

PAUL

10:49:13
And I've even seen it at work, that people who know information the rest of this do not know come to rely on it to the exclusion of actually going out and beating the bushes in the old fashioned way, to pick up information they might get that way. But they also come to feel like they are better able to decide for me what I need to know and what I need to do.

REHM

10:49:40
Stewart Baker.

BAKER

10:49:42
Well, I understand the concern. The problem is if you're not going to give away the secrets, every single secret that we have in our counter-terrorism program, you have to keep some of that information from the public. And if we have to have a debate where all of that is disclosed, then we will have a debate, but we won't have any intelligence program.

REHM

10:50:00
Congressman.

AMASH

10:50:01
You can't have a free country with secret law. It doesn't work. This has been the truth throughout history. Secret laws are -- violate the very idea of free -- of a free country. So we need to have more disclosure. And certainly, members of Congress should have access to all of these FISA court opinions, which is not the case right now.

REHM

10:50:22
Here's a tweet, which says, "How can 205 members of Congress vote against the secret program but not weigh in on the fate of the man who exposed the program?"

AMASH

10:50:40
Well, how are they not weighed in on Mr. Snowden?

REHM

10:50:44
Right.

AMASH

10:50:45
Well, Mr. Snowden is a mixed bag for many people including myself. I mean, we wouldn't have gotten to this point if not for those disclosures. We don't have the -- this type of debate and this type of amendment brought to the floor, frankly, without these disclosures. On the other hand, we don't know what he's up to, and there are concerns that he may be doing things that are dangerous. So we're...

REHM

10:51:06
Eugene Robinson makes this point in The Washington Post this morning that Edward Snowden has actually done us a favor. Stewart Baker.

BAKER

10:51:17
I don't see at that way at all. He had many, many places he could have gone if he wanted to object to this, to raise his concerns without exposing the program. He chose instead a very narcissistic step of disclosing this publicly and putting the program and our ability to catch people with it at risk.

REHM

10:51:37
Congressman.

AMASH

10:51:38
Well, I would say it's not clear how many places he had to go actually. He could go to some of his supervisors. If they turned him down, I don't know what happens next. He certainly could not come to a member of Congress like me. If he had come to me, it would have been an illegal disclosure.

BAKER

10:51:51
He could have gone to the intelligence committee representatives. He could have gone to the inspector general. He could have gone to the general counsel. He could have gone...

REHM

10:51:58
And then what would have happen?

AMASH

10:51:58
That's the same intelligence committee that won't share the details of these opinions with rank and file members.

BAKER

10:52:04
So you don't like the outcome. That's the problem. You just don't like the decision that the committee reached.

AMASH

10:52:09
Well, we have a Congress here with, you know, we have three branches of government. And one of the branches is not the intelligence committee. It's the legislative branch. And we're supposed to have access to this information just like any one else.

BAKER

10:52:20
If you're gonna give that secret to 535 people, how long do you think it's gonna remain secret?

AMASH

10:52:25
This is...

BAKER

10:52:25
I would say about 10 minutes.

AMASH

10:52:26
We're talking about laws here. The...

BAKER

10:52:29
But we're talking about interpretations.

AMASH

10:52:31
The interpretation of law can be the law. If a court interprets how a law is to be applied then that's the law. And members of Congress don't have access to that? That's outrageous.

BAKER

10:52:42
No -- I'm sorry. If you're gonna keep something secret, you have to limit the number of people who look at it.

AMASH

10:52:47
You could not keep...

BAKER

10:52:48
This is an interpretation, not a law.

AMASH

10:52:50
You could not keep laws secret from Congress. Congress writes the laws.

RICHARDSON

10:52:55
Look, Stewart, the inspector general report that was released confirmed that there were thousands of people within the administration who were briefed into these programs. And to say those thousands of people who are low-level analysts had more of a right to the information than the members of Congress, who are sworn to uphold the Constitution, that just doesn't make sense.

REHM

10:53:15
Michelle Richardson, she's legislative counsel for the American Civil Liberties Union. And you're listening to "The Diane Rehm Show." Let's go to Jacksonville, Fla. Hi there, Parker. Thanks for waiting.

PARKER

10:53:34
Thank you for taking my call.

REHM

10:53:35
Sure.

PARKER

10:53:36
I wanted to say that I really don't see this as more of ideology or politics but more of a problem with the defense industry in general. Now, Booz Allen Hamilton, the company that Edward Snowden works for, was -- has received millions of dollars in defense contracts ever since 9/11, and they've sent millions of dollars to congressmen as part of campaign contributions. And thanks to the quid pro quo, they get all sorts of no big contracts and secret contracts like the ones for the NSA.

PARKER

10:54:05
And what this has proved is that they are completely incompetent at their jobs, like Edward Snowden was on the job at the NSA for less than two weeks when he grabbed the flash drive and leaked this whole program. Now, he's a low-level analyst who just started there. Imagine somebody who actually had a grievance with this agency and had more privileged access to this information. He could potentially do much more damage.

REHM

10:54:28
Michael.

HIRSH

10:54:28
Well, I mean, the caller threw his light on an important aspect of this which we haven't discussed very much, which is how sort of privatize this entire surveillance system is and how much the NSA, in response to what was seen more than a decade ago as a problem of going deaf because of its antiquated technology, came to rely on private-sector technology and many of these companies like Booz Allen that have grown very rich in helping to build these kinds of programs.

HIRSH

10:54:55
And Michael Hayden, a former NSA director, told me for an article I wrote, there's not a computer or telephone inside Fort Meade that NSA headquarters that, you know, that the government still owns. So it's, you know, it's an important dimension here, how sort of private and public sectors are both involved in this.

REHM

10:55:11
Siobhan.

GORMAN

10:55:12
Well, it's an important point particularly because there aren't that many contractors that really have an in at NSA, I mean, because NSA is so secretive. You end up with certain contractors kind of having, you know, easier -- an easier time getting these contracts. Booz Allen is certainly one of them because of that. I've certainly talked with people who have worked at NSA and worked on many of these programs.

GORMAN

10:55:36
They say, over time you end up with a very cozy relationship and contractors just wanna win more work. And so the management that NSA actually exerts over these contractors over time can grow pretty weak and pretty loose.

REHM

10:55:49
So, Stewart Baker, how concerned are you that the opening up of all of this information could indeed lead to another terrorist attack?

BAKER

10:56:03
Well, if we can't use this 215 program to find out who is calling into the United States and then calling within the United States to carry out a plot, we are enabling conspiracies inside the United States enabled from abroad. And that is precisely what we have most worried about all along. So I am worried. I think we let our down -- our guard down once in response to exactly this kind of pressure. And I fear we're doing it again.

REHM

10:56:33
Congressman.

AMASH

10:56:34
Well, nobody is eliminating Section 215. We're returning Section 215 to its original intent. And all you have to do is ask Mr. Sensenbrenner about that. 215 was not intended to collect the phone records of every single American. And there are those in the intelligence community who continue to conflate these programs, 215 and 702 and the other programs.

AMASH

10:56:55
Whenever they talk about the terrorist attacks that have been stopped, they say we use the phone records collection and other programs to stop these terrorist attacks. Well, I can tell you, the phone records collection has not been the one that's been used.

REHM

10:57:09
Congressman Justin Amash, Republican of Michigan, Stewart Baker, former general counsel at the NSA, Siobhan Gorman of The Wall Street Journal, Michael Hirsh, chief correspondent at National Journal magazine and author of "At War with Ourselves" and Michelle Richardson, legislative counsel with the ACLU, thank you all so much.

AMASH

10:57:42
Thank you.

BAKER

10:57:42
Thank you.

GORMAN

10:57:42
Thank you.

RICHARDSON

10:57:42
Thank you.

REHM

10:57:43
And thanks for listening. I'm Diane Rehm.
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