New Efforts To Limit NSA Surveillance Powers

MS. DIANE REHM

10:06:53
Thanks for joining us. I'm Diane Rehm. Revelations about the extent of NSA surveillance activities have raised troubling questions for many Americans. Sen. Bill Leahy (sic), Democrat from Vermont, argues it's time for a national debate over America's surveillance policy. He joins me by phone to talk about how and why he believes it should be changed.

MS. DIANE REHM

10:07:21
Later in the hour, we'll talk with Michael Hirsh of National Journal, Marc Rotenberg of The Electronic Privacy Information Center, and David Sanger of The New York Times on the pros and cons of some proposed surveillance policy reforms. But first to you, Sen. Leahy. Welcome to "The Diane Rehm Show."

SEN. PATRICK LEAHY

10:07:45
Well, thank you. It's always good to be on your show.

REHM

10:07:47
Thank you so much. You have said that we should just collect the data we need, not all the data we can. Is that what we're doing?

LEAHY

10:08:03
Well, now we have the idea -- I think with the NSA and others -- that if you have the ability to collect something, you ought to just go ahead and collect it, whether it's worthwhile or not. We've seen these revelations. In fact, the Washington Post today has a front-page story where Microsoft and others are worried about the NSA tapping into their networks and collecting things. My feeling has always been, if you collect everything, you really collect nothing because you have no ability to go through all of it and know what you have.

REHM

10:08:38
Hmm.

LEAHY

10:08:43
And I hear the arguments back from the NSA and others, well, we're very protective of this. Well, bologna. They're not. I mean, they weren't protective enough to keep a 29-year-old subcontractor, Edward Snowden, from walking off with all the things that they say they keep so carefully protected.

REHM

10:09:08
So describe the scope of what you see we're doing now and how you think that should be limited.

LEAHY

10:09:19
Well, the American people have been told that all their phone records are relevant to counterterrorism investigations -- that's yours, mine and everybody else. And then they're told all Internet metadata is relevant. Well, that's why you've had everybody from these major corporations and in disparate groups as far apart as the National Rifle Association, the American Civil Liberties Union, have said, no, you're going much too far.

LEAHY

10:09:48
Congressman Sensenbrenner, a Republican in the House, and I, as a Democrat, we've introduced legislation to limit this. We've gotten a lot of co-sponsors across the political spectrum, Republicans and Democrats.

REHM

10:10:07
And what would that USA Freedom Act that you've introduced with him actually do?

LEAHY

10:10:13
It would limit what we're able to collect in the indiscriminate collection of the records that have no connection to terrorism. But you'd have a lot more transparency and accountability. You would also have far better oversight by the courts. You know, if we don't do this -- we'd also have sunset provisions that would be much shorter, so you'd have to go back to it.

LEAHY

10:10:41
You'd have the FISA Court have far better abilities to actually question the request being made by the government. In fact, I'm going to be holding hearings. Most of the hearings of these things have been done behind closed doors. I've done mine in the open. We'll have another one on Dec. 11.

REHM

10:11:06
Well, I gather you're also endorsing this idea of a special advocate to focus on privacy and protection in the FISA Courts. Tell us how that would work.

LEAHY

10:11:21
Any one of us who have ever argued in a court, as I have and many others have, know that a court expects to have people on both sides on an issue and argue for it, so it makes it easier for the court to make up their mind. In the FISA Court, the secret intelligence court, there's only one side that comes in, and that's the government.

LEAHY

10:11:44
And then the court makes its decision based on what the government's told it. I think, on some of these major collection items, there should be an advocate for the public at large. You know, what's happened is this: The government takes the attitude that if it's online somewhere or in a telephone line or anything else, we ought to be able to just collect it.

LEAHY

10:12:12
Now, you know and I know if your local police said, well, you know, we just want to be sure of everything. We're going to go into every house in your neighborhood, including yours, go through all your papers, go through everything that you've got in your house, just to make sure everything's OK, people would scream and say, you can't do that.

LEAHY

10:12:32
You need a warrant. Well, if you're keeping those same papers, your medical records and your financial records, your children's records, and everything online, the government shouldn't have any right to go into that just because they say, maybe it will help us in terrorism.

REHM

10:12:51
Well, you know as well as I do that the release of these Snowden documents have really undermined America's trust in government and in the amount of oversight that's going on. So the question becomes, do you think that what you are trying to do will restore America's trust, or is it just a tiny step forward?

LEAHY

10:13:24
Well, it depends upon how it comes out in the debate. There's going to be those who want to keep to the status quo. There are some in the Congress, in both parties, who want to keep things exactly as they are. I disagree. I think the American public wants some oversight. We don't want a government that can be Big Brother just because it has the electronic ability to do so. And again I go back to the point I made. They say we have the ability to collect everything, so we should. And yet they didn't even have the ability to keep a 29-year-old from stealing it all.

REHM

10:14:03
But on the…

LEAHY

10:14:03
One of the reasons some of our major corporations are now saying we've got to change -- because they can see that companies like Microsoft, Google, Yahoo, Facebook, Apple -- they can see they're going to lose billions of dollars of business overseas because people say, why should we deal with an American company if the American government is spying on everything we do?

REHM

10:14:28
But, Sen. Leahy, how much should Americans expect to know about NSA surveillance activities?

LEAHY

10:14:41
I think they should at least expect to think that there are people in the Congress who are doing the oversight to know exactly what is going on. I mean, like many others in the Congress, I read classified materials all the time but should also have the ability to say, wait a minute, you're going too far in this, that, or the other thing.

LEAHY

10:15:03
Of course, we have some clandestine operations going on protecting our country or in law enforcement that are not made public and should not be made public. But I think most Americans assume that they have some right to privacy that is protected in our Constitution. It's protected in our history as a nation. And if you suddenly find that everything you do is susceptible to being watched and analyzed by your own government, what does that say to us as a people?

REHM

10:15:39
How much bipartisan support is there for your specific reform plans?

LEAHY

10:15:46
Well, we're getting a lot of it now. I mean, Rep. Sensenbrenner has more than 100 co-sponsors in both parties in his. I have a number across the political spectrum in the Senate. And is that enough to pass it? I don't know. But I think we have to have a real debate on this thing.

LEAHY

10:16:15
I think the idea of some that we can just go ahead and do what we've always done in the past does not make any sense at all because I think we've found -- whether it's from the Snowden things or just some of the things that the press has come out with, we know that this has gone far, far too -- far beyond what anybody said it would when it first started.

REHM

10:16:43
All right. And while I have you on the phone, Senator, let me ask you about the seven-minute video that Secretary of State Kerry has now sent to the Senate and the Congress, asking you to delay any action on any further sanctions on Iran. What is your position there?

LEAHY

10:17:12
Well, I'm going to look at it. I'm going to hear the hearings. I'm not about to give this administration -- I wouldn't give any administration a blank check. I think that it is right to see if there is an area of agreement with Iran, but I'm not about to rubberstamp anything the administration has sent on Iran.

REHM

10:17:40
But you do not feel necessarily that giving Iran a six-month period to at least show that it is truthful in what it's going to do and if it's not truthful then re-imposing sanctions?

LEAHY

10:18:03
Well, we're not lifting all the sanctions as it is. I think that a lot's going to depend upon what kind of oversight is there. If the International Atomic Energy Commission is allowed total oversight, then I would trust what they report. Iran has an incentive because of some of the $7 billion or so that's being released. They have an incentive to do this, but I need to know a lot more before I'm ready to agree with the administration.

REHM

10:18:38
Sen. Patrick Leahy, Democrat from Vermont, thanks for joining us, sir.

LEAHY

10:18:44
Thank you very much, Diane.

REHM

10:18:46
And short break. We'll be right back.

REHM

10:20:00
And now joining us here in the studio, Michael Hirsh, chief correspondent at the National Journal, author of "At War With Ourselves: Why America is Squandering Its Chance to Build a Better World." Marc Rotenberg is executive director of the Electronic Privacy Information Center. David Sanger, chief Washington correspondent of the New York Times, author of "Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power."

REHM

10:20:41
Before we move into this intelligence gathering portion of our discussion, David Sanger, what did you make of the senator's comments regarding Iran?

MR. DAVID SANGER

10:20:55
I thought his caution was very interesting, Diane, because, even among the president's closest allies on foreign policy issues in his own party, you've heard a lot of skepticism. And it's understandable because we have 30 years with Iran of a fairly nasty history and 30 years, in many ways, of deception on where facilities were and so forth. So I think they want to be very cautious not only not to lift too many sanctions but not to be on record in case this whole thing turns out not to work after six months.

REHM

10:21:29
And, Michael Hirsh, your reactions?

MR. MICHAEL HIRSH

10:21:32
Yeah, Sen. Leahy and some of these other dissenting Democratic senators who were not given any administration support, I think, will be playing a bad cop role along with Israeli Prime Minister Netanyahu during this critical period of negotiations. And I think it points up just how hard these negotiations are going to be. I mean, this is just an interim freeze. Now they're going to be talking about actual dismantlement, and that's going to be much, much harder for the Iranians to swallow.

REHM

10:21:56
All right. Now turning to this collection of data, here's an email from Karen who says, "When I travel around the country, my cell phone, laptop and tablet change the location for weather reports. TripAdvisor knows where I've been, where I am now. Amazon knows what books I've looked at. All these vendors and more already know more about me than I do.

REHM

10:22:33
"So why should there be two categories of information, the one that corporations know and that known by the government? I say, chill, the world is changing. We're too focused on the so-called individual while we have given up our individuality." Marc Rotenberg.

MR. MARC ROTENBERG

10:22:57
Well, Diane, I don't think we actually have given up our right to privacy. I don't think we've given up our expectation of privacy. I think we, today, live in a world where we are increasingly aware of the collection of our personal data. But the way in which our personal information is used is often without our consent or knowledge for purposes completely unrelated to why we might have provided it.

MR. MARC ROTENBERG

10:23:21
And it's for that reason that we've created legal frameworks and structures that say both to the NSA and to private companies, when you're collecting personal information, you should use it for appropriate purposes. All of the companies that your caller described are subject to privacy policies. And if they go outside the bounds of those policies, groups like mine, like Epic and others, will say that's unfair to the user.

REHM

10:23:45
David Sanger, are we now in the midst of the debate that Sen. Leahy wants to have?

SANGER

10:23:53
I think we're starting that debate, but I don't think that we're anywhere near in the midst of it. You have in the National Security Agency and the rest of the intelligence agency, I think, considerable confusion right now about what the -- how all of this affects their mission. If you think back over the past 12 years since 9/11, what we have seen is the huge increase in the amount of collection, as Sen. Leahy said. And for years, people didn't collect the haystack as thoroughly because they simply didn't have the algorithms, the computing power to go through it.

SANGER

10:24:34
Now we have those algorithms. We have that computing power. And no one sort of stopped and said, just because we can do it, does that mean we want to do it? I think one of the most interesting next developments on this is going to be a committee that President Obama put together that's supposed to report back in the middle of December that includes some intelligence experts and privacy experts and legal experts.

SANGER

10:24:58
And he said to them, don't answer the questions as legal -- because I think the president believes what they've been doing is strictly legal within the terms of the Patriot Act and the successors and the Pfizer rulings -- but tell me whether it still makes sense. And that really is the debate we need to have before we get to the legal debate.

REHM

10:25:17
Michael Hirsh, are people feeling differently today about giving up their privacy than they were right after 9/11?

HIRSH

10:25:31
Oh yeah, I mean, I think very definitely. You know, there was obviously a sense of crisis that has long since passed. And I think one of the issues, as we have this debate, is, you know, have we become complacent about real threats that exist out there? It's very difficult to prove a negative, but intelligence experts, people who support the NSA surveillance program, you know, will make the case, and constantly do that. There are a lot of plots that they stop or that they detect that they can't necessarily point to.

HIRSH

10:26:03
You know, everyone wants to see the sort of smoking gun or the smoking email, if you will, but it doesn't really work that way in intelligence gathering. It's piecing together different pieces of a puzzle and using these methods. And that's why you see, despite all these revelations, still a lot of support for a stronger bill than the one that Sen. Leahy was advocating.

REHM

10:26:23
A strong bill.

HIRSH

10:26:24
Yeah, there's an alternative bill that Sen. Feinstein, the chairwoman of the Intelligence Committee, has pulled together. And this is really the sort of center of the debate right now. The fulcrum is what, you know, will be more hers, which protects the bulk collection of telephonic metadata. And all the things that Leahy opposes really focuses on Section 215 of the Patriot Act which is this question of, can the government, you know, just amass huge amounts of telephone data -- not the content of the calls but, you know, who you're calling, duration and all that?

REHM

10:27:01
And to what extent do you think that in this day and at this moment the gathering of that metadata from any and every source is useful and even necessary?

HIRSH

10:27:16
Well, I think that the danger is throwing the baby out with the bathwater in the sense that if you talk to counterterrorism experts, they are very concerned with how diffuse the threat is. The threat is still there. You know, we keep hearing about the near defeat of a core al-Qaida in Pakistan. But that's become all but irrelevant when you look at all the new failsafe havens that have opened up, you know, in North Africa, the Arab world, and a lot of these new groups that have sprung up from Libya to Syria.

HIRSH

10:27:43
And that's what you hear intelligence officials express a lot of concern about. And because of the nature of this threat, that's -- you know, they feel that it's critical to keep this sort of electronic fence around the country, if you will, to stop the next Boston Marathon bombing.

REHM

10:27:59
Marc Rotenberg.

ROTENBERG

10:27:59
Well, I think I disagree with the points that both David and Michael have made. David says, for example, that we now have sophisticated algorithms that help us make sense of all this data that's being collected. But, in fact, that's very much in dispute because the more closely that people have looked at the evidence that the NSA has provided in support of these broad surveillance programs, the less compelling those examples turn out to be.

ROTENBERG

10:28:24
In fact, it is very difficult to manage this type of data for the simple reason that the kind of conduct that you're trying to identify here is literally one of a kind conduct. This is...

REHM

10:28:34
Can you give me an example?

ROTENBERG

10:28:36
Well, let me talk a little bit about, you know, data mining and algorithms, which I know something about. I mean, if you think about your relationship, for example, with a mail order company, every year around Christmastime, maybe you buy a sweater for your nephew. And the mail order company knows this. And so, as Christmastime approaches, they sent you a little reminder: Diane, would you like to buy a sweater? It makes sense because there's a sequence of similar events from which you're able to reasonably infer that what's likely to happen next will look like those prior events.

REHM

10:29:06
Is that Diane wants a sweater. Right.

ROTENBERG

10:29:11
Trying to predict terrorist acts is a much more difficult problem.

REHM

10:29:15
What about that, Michael Hirsh?

HIRSH

10:29:18
Yeah, I mean, that's very true. And, in fact, it's interesting that one thing lost in this debate has been that the NSA and the people who examine the data amassed by the NSA can barely keep up. With what they're looking at, they often don't know. And I think there's also a lot to the idea that the NSA simply, over the past 10 years in particular, started just gathering whatever it could gather technically. And they probably went overboard.

HIRSH

10:29:46
I think even the president's review commission is going to acknowledge that in some form when we hear the report and say, we're not going to be listening to Angela Merkel's cell phone anymore, you know, leaders of friendly nations or Ban Ki-moon, you know, the U.N. secretary general, things that have been reported in recent months. But again the question becomes, when it comes to real bad guys, the ones that we think are out there -- we don't always know who they are -- is this a necessary form of surveillance?

ROTENBERG

10:30:13
I wanted to come back to another point, though, which David had made about the legality of the current program, which I think is also very much in dispute. And the key debate here focuses on Section 215 of the Patriot Act, which says that the NSA through the FBI can collect telephone records when they can establish relevance to an authorized investigation. Now those are fairly straightforward terms. Nonetheless, the administration has taken those terms to mean that they can collect all telephone records on all American telephone customers on an ongoing basis.

ROTENBERG

10:30:45
And even the author of the Patriot Act, James Sensenbrenner, who's responsible for that language, said, this is never what we intended. You have to have a target. You have to have someone in mind, particularly when you're directing the surveillance authorities toward the United States, before you can compel the production of those types of records.

REHM

10:31:02
And yet he is now teaming up with Sen. Leahy.

ROTENBERG

10:31:06
Well, which is consistent with his position. In other words, he was very surprised to see this interpretation of the administration for the 215 provision. He wants to make it absolutely clear that that kind of activity should not continue.

REHM

10:31:19
David.

SANGER

10:31:19
Well, I think there's been excellent points, and I think, to some degree, we need to sort of pull apart two or three separate things that the president is now dealing with. So, first, it's absolutely right that there is a foreign element to this. Does it make sense to go listen in to Angela Merkel's cell phone?

SANGER

10:31:42
The president's already answered that question because he said that we will not now and will not in the future, which seems to suggest that he thinks it was a huge overreach to go do that before. He has interestingly not said that yet about our monitoring of the leaders in Mexico and Brazil. And so at some point, there's going to have to be some real standards about whether or not this constitutes real overreach, especially...

REHM

10:32:07
How do we identify our allies, and how do we identify others?

SANGER

10:32:12
Others. And what do you do with allies who you also need as partners. I mean, in the German case, we're treating the Germans both as partners and as targets. And in an interview we had recently with Gen. Alexander, the head of the NSA, he basically said, I'm not sure that's possible in the future because we're going to need their cooperation particularly in areas of cybermonitoring as well to keep viruses from coming into the United States or elsewhere on the net. And you can't do that and be a target at the same time. So I think the NSA there recognizes it as an issue.

SANGER

10:32:48
On the domestic side, I think it's going to be a much harder pull between the president and Congress because the president fundamentally believes they need these programs. And Marc has raised very good questions about whether they follow the intent that Congress had at the time. And there's good reason to question that whether or not they do.

REHM

10:33:07
And you're listening to "The Diane Rehm Show." The question I think a lot of Americans have is the one Michael raised, David: Is the threat greater now than it was back in 9/11?

SANGER

10:33:27
It's very different now. And that's the hard part we're having with this because, as Michael pointed out, there is not a threat from a core al-Qaida as much in one place in that time Pakistan. There are lower-grade threats that there will always be. And there are threats that you will never pick up sometimes with these programs. And the Boston Marathon bombing was an example. Now, before, when Marc talked about whether or not this kind of data is useful for predictive activity, he's absolutely right. There's very little evidence so far that they are very good at predicting activity with it.

SANGER

10:34:03
The argument they are making for holding on to the bulk collection is less a predictive one, although some people have made that argument, but more one that once they find the phone conversation between someone abroad who they suspect is a terrorist and someone back here, they want the speed to be able to go out and dig those numbers up here. Now they haven't answered the question yet: Why couldn't they do that with the existing records that the individual phone companies hold onto for billing anyway? Their answer is, the phone companies don't want to hold onto it for very long.

REHM

10:34:37
Marc Rotenberg.

ROTENBERG

10:34:38
Well, David is making a number of good points, but I want to add something else to the discussion, which I think, as we think about today as opposed to 9/11, it's not just that the threat has changed. It's also that we have suddenly, over the last decade, created this enormous infrastructure of surveillance. And one of the remarkable things that we see is that data tends to chase applications.

ROTENBERG

10:35:02
In other words, you create a system for one purpose, you find that you have all this data, and then you begin to ask yourself, well, how else can we use this? We can look for terrorist plots. We can look for money laundering. We can look for financial fraud. We can look for all sorts of other activities that there might be a reasonable justification to pursue, but now we're pursuing because we have the capability to do so. And...

REHM

10:35:25
And that's what Sen. Leahy is arguing against.

ROTENBERG

10:35:27
And I think what -- and I think the very important point that Sen. Leahy is making here is that the reason we need accountability and transparency is not because we disagree with the mission of the agency. It's actually to ensure that the agency is doing what it's supposed to be doing. And in the absence of those safeguards, we won't have that assurance.

REHM

10:35:48
Michael.

HIRSH

10:35:48
I think it's important to weigh important but abstract rights against concrete realities. And one of the things we're not talking in is concrete realities right now. Let's take the Boston Marathon bombings.

HIRSH

10:36:00
I've talked to intelligence professionals who, if you look at the radicalization of the elder Tsarnaev brother, the one who seems to have led the plot, his contacts, you know, in his home country with other radicals, the connection that he had with the fellow down in Florida who may have been behind those 2011 murders, they will make the case that, you know, only with the use of email and surveillance email and telephone data could you possibly detect something like that.

HIRSH

10:36:28
It might've been detectable. They missed it obviously. They missed the radicalization of this fellow which had been going on for a couple of years, in addition to which the new threat from al-Qaida, such as it is, comes a lot from the teachings of a guy named Abu Musab al-Suri who -- the name is not well known. He had a big fight with bin Laden in the 10 years before bin Laden's death over the proper approach.

HIRSH

10:36:51
But he's the kind of guy who influenced Anwar al-Awlaki, the enmity American preacher who preached, you know, go to the Internet, you know, read our material on the Internet, do your own thing, form your own plots. This is how to make a bomb. That's the nature of the new threat. And of course, it's -- that apparently inspired the Tsarnaev brothers. So the point is, you know, there might be some Americans who still have their limbs today and who still have their lives had, you know, they detected this plot.

REHM

10:37:21
Michael Hirsh of National Journal magazine. When we come back, we'll open the phones for your calls, your email. I look forward to speaking with you.

REHM

10:40:01
And welcome back. Time to open the phones, 800-433-8850, first to Brian in Grand Rapids, Mich. You're on the air.

BRIAN

10:40:15
Hello, Diane, and hello guests.

REHM

10:40:17
Hi there.

BRIAN

10:40:19
Happy Thanksgivukkah Eve.

REHM

10:40:21
Thank you.

BRIAN

10:40:23
My comment is that I object to the fact that all FISA Court judges are appointed by the chief justice of the Supreme Court. And this is a single point failure. And it's the weakest link in this whole structure. As long as the judges think the same, you might as well just have one judge.

REHM

10:40:43
Marc Rotenberg.

ROTENBERG

10:40:45
Well, the caller makes a good point, and this issue has been described in some depth, I think, in the New York Times. But it points actually to larger structural concerns about the FISA Court, about the selection, about the secrecy as Sen. Leahy described, about the absence of an adversarial process. So I hope one of the outcomes of this national debate should be some changed to the FISA Court to address these concerns.

REHM

10:41:09
David.

SANGER

10:41:09
Yeah, I suspect that Marc is right and that I -- if I had to predict for next year, I think the FISA Court's going to be an area where there is likely to be some change because I think those who want to hold on to the bulk collection and the intelligent agencies see that they could give up something on the FISA Court and hold on to their existing set of powers, so the biggest change would be to have a privacy advocate or somebody who steps in. This is the most one-sided legal procedure you can imagine right now because there is no one arguing the other case.

REHM

10:41:49
All right. To Jim in Charlotte, N.C. You're on the air.

JIM

10:41:56
Yes. My point was that it seemed that President Obama was -- I mean, he almost ran on this issue in many ways. Certainly one of the prongs of this campaign was this -- you guys are calling it overkill -- I mean, overreach. I think that's a euphemism for overkill. I think the whole issue -- I mean, you guys talk about -- spent a great length talking about the Boston Marathon bombing.

JIM

10:42:30
And if that was just a bombing that wasn't related to -- well, if it was an event where three or four people were killed and another couple of dozen were injured, I'm not sure. They probably spent millions and millions and millions of dollars, invested maybe a billion dollars -- I don't know how much they spent investigating this crime.

JIM

10:42:49
And there were probably crimes that were committed during the course of the year in which more people were injured and killed that a fraction was spent on that. And I think that's the same issue in Benghazi where they're trying to parse out whether or not it was a terrorist attack or whether it was some other kind of attack.

REHM

10:43:04
All right. Let's hear what Michael Hirsh has to say.

HIRSH

10:43:10
Well, certainly you can say that, you know, more people have lost their lives or been injured through, you know, robberies, guns, you know, than bombings like at the -- such as the Boston Marathon bombings. But I think there are a number of people without legs today that wouldn't agree that, you know, the U.S. intelligence community should be monitoring potential threats like this. And, again, one of the difficult parts of this debate is to prove a negative, is to say, well, we stopped...

REHM

10:43:44
Exactly.

HIRSH

10:43:45
And you do hear of these intelligence officials say that they have, on a number of occasions, stopped what they thought would become plots using these specific methods.

REHM

10:43:56
And what that requires is trust on the part of the American people to believe that what they're saying is true, David.

SANGER

10:44:06
It does, and I think that that gets to one of the biggest problems that the advocates of the bulk collection and many of these other procedures have right now. They say, we report to Congress. The intelligence committees look at this. We report to FISA. They look at this. But what they're missing here and what the Snowden revelations have made clear is much democratic buy-in in these programs.

SANGER

10:44:32
And they say that they couldn't talk about them publicly for intelligence reasons, although I'm not entirely sure had every terrorist in Pakistan and elsewhere known that we were collecting all these telephone numbers from the phone companies that it would've made a big difference in their communication patterns.

SANGER

10:44:51
In fact, if they went to the movies in the past decade, they probably think we can do a lot more than we really can. So the issue right now, I think, is, can we move to a world in which there really is democratic buy-in in whatever program you end up living with? And I think that's what Sen. Leahy is really trying to push toward here.

REHM

10:45:12
Marc.

ROTENBERG

10:45:13
Yeah, well, I agree with David. I think we are missing the kind of public reporting on these surveillance activities that we have traditionally had certainly for electronic surveillance in the United States. But I would push a little bit further. I don't think this is just about democratic buy-in or public support for programs that would necessarily continue. I think we actually need to have the debate as to the scope of these programs and whether they're appropriate for our country.

ROTENBERG

10:45:39
So when the administration says, or the director of national intelligence says, we will release certain documents so the public will understand why we're doing what we're doing, I don't think that's the right measure of this debate. I don't think they should release for the purpose of us supporting what they're doing. They should release for the purpose so that we can decide whether this is the right thing to do.

REHM

10:46:01
Would all of this have come to light as it has were it not for Edward Snowden, Marc?

ROTENBERG

10:46:10
Well, I think it's obvious it wouldn't. And I think, in many respects, you know, there are certainly issues with Mr. Snowden. But nonetheless, I think we need to be grateful to him for helping make possible a debate which this country needed post-9/11, which is simply this: Have we gone too far? Have we created two great surveillance authorities that we no longer control?

REHM

10:46:33
Michael.

HIRSH

10:46:34
Yeah, I mean, I think it's clear that Snowden's revelations were the cause of all of this rethinking. I mean, you take someone like James Sensenbrenner, one of the authors of the Patriot Act, and the fact that he's now on the other side of the issue, that's all because of Snowden. But that doesn't mean that some of these revelations were harmful to intelligence gathering, to relations with other countries, and that Snowden, you know, did not violate an oath. And, you know, so, you know, you can thank Snowden at the same time as you can advocate his prosecution, I think.

REHM

10:47:08
All right. To Gary in Arlington, Texas. Hi, you're on the air.

GARY

10:47:14
Good morning. I've had the opportunity to work in Egypt, been in the Gaza Strip in Israel, worked in Israel and worked in Turkey. I buy pita bread and olives at the Arab market in Arlington, which was frequented by bin Laden's driver, as y'all may recall was prosecuted some years ago. I have friends that attend the same mosque. I'm actually Jewish, but I cannot believe the Pollyanna-style thought that we shouldn't collect this phone data. We need to put the dots together.

GARY

10:47:59
We don't care at the NSA that my sister has placed four phone calls to my mother in Fort Worth. We do need to know that my friend Omar that I see at the Arab market is placing calls to Yemen on a regular basis. It's just stunning that people, the American public, is so concerned about their personal phone calls being tapped.

REHM

10:48:27
Marc Rotenberg.

ROTENBERG

10:48:29
Well, I think we're confusing a couple of different issues here. I think as to the need to identify actual threats, there's no dispute. I think the question is, how do you do that in a democratic society, one with a Constitution, one that protects certain fundamental freedoms? And it places a burden on the government to satisfy a legal standard. If you take the view, you know, oh, that's too much of a hassle, why bother, you're in a different world. And it's not a democratic society.

HIRSH

10:49:01
I just wanted to say, Diane, that what's missing right now from the debate is that intelligence experts will tell you that the reason for bulk collection of telephonic data is as a detection tool. The opponents of this want to limit it to a part of some ongoing investigation into some known or suspected plot. But the problem here is that it's used by intelligence experts to detect plots.

HIRSH

10:49:30
And so, you know, you can't necessarily -- as one of the NSA officials said in Russian testimony recently, you would basically just neuter it if you made it -- if you required that it be attached to some ongoing known plot. And that's, I think, the real fulcrum here of the debate is the intelligence community says it needs this so that it can figure out where the plots are in the future.

SANGER

10:49:54
This gets around the definition of reasonable, articulable suspicion, which is the standard by which the NSA can go into these databases. And, to some degree, I think that we are limiting ourselves too much by thinking about both the phone data and the email data, although that's the way many of us go communicate.

SANGER

10:50:21
Because if you look three or four years down the technological line, we're going to have so much more data that your car lets off, that comes from cyber indications, from almost everything else you do as you become connected, that we need to sort out that definition before these new technologies come online.

REHM

10:50:43
And here's an email on that very point from Rick in Fort Worth, Texas. He says, "My question has to do with records collections not only by the NSA but also the TSA. Two weeks ago, I read an article in the McClatchy Newspaper that the TSA is now collecting property records and vehicle registration records on people who pass through TSA checkpoints. Why is the TSA acting like the NSA? And why do they need these records if their reason for being is to keep someone from hijacking a plane?" Mike Rotenberg.

ROTENBERG

10:51:30
Oh, it's a great question from your caller. Epic, my organization, is actually pursuing this issue. We wrote to the TSA, and we said that this appeared to be a violation of the Privacy Act, which restricts the ability of federal agencies to collect this type of data. But we also know it's about the increasing and secretive profiling of Americans.

ROTENBERG

10:51:50
What the TSA is doing is not simply making a determination about whether you're carrying things on your body as you pass through airport screening. They're also going into your records and trying to decide, are you the type of person who would likely commit an act that poses a threat to aviation security?

REHM

10:52:08
But isn't that good for the passengers on the plane?

ROTENBERG

10:52:12
Well, in theory, it could be good. In practice, the problems are just enormous. I mean, you get into all sorts of questions, as we talked about earlier, about the reliability of these kinds of inferences. And it easily leads to discriminatory conduct.

ROTENBERG

10:52:29
For example, do you take a person's ethnicity or nationality into account when you're making a judgment about that individual if you have data that says, well, that ethnic group or that, you know, nationality is more likely probabilistically to commit a criminal act than another group? I mean, we would recognize that, and we say, well, that's the definition of discrimination.

REHM

10:52:51
On the other hand, Marc, both after 9/11 and after the Boston bombing Marathon (sic), the government was criticized for not putting the dots together. How else can the dots be put together if there are not these kinds of linkages being established, Michael?

HIRSH

10:53:19
Yeah, I mean, I agree with that. That's the argument that I've tried to make. I think we should be thankful we have groups like Marc's doing all the second guessing. I think it's important. But at the same time, you know, it comes down to, you know, do you want to live in an easy-pass world, you know, where it's become enormously easy to drive on our highways but at the same time we know that data about where you're going, you know, where you're driving and other things about all the trips you make is being amassed?

HIRSH

10:53:47
We don't know to what end. I mean, it's usually just because they want to bill you. But, you know, it is the world in which we have voluntarily given up our privacy. And where is the line to be drawn? And it's good that we're having this debate, but I think the line has moved.

REHM

10:54:02
David.

SANGER

10:54:03
The line has moved, but what I find really fascinating, as somebody who's spent most of their time covering foreign policy and national security, is a line that's in a very different place here in the United States than it is, for example, in Europe. And they're different from Asia. And you've seen the reactions of the Europeans. This may be the first spy scandal where the economic impact is going to be greater than the diplomatic impact as people begin to try to segment the Internet to some degree.

SANGER

10:54:29
And the Germans and others are already discussing doing this. And so we have to also line up our principles with the reality, as Sen. Leahy said before, that you're going to find a lot of American companies finding it difficult to do business around the world if everybody thinks that the NSA has a backdoor.

REHM

10:54:47
And you're listening to "The Diane Rehm Show." Let's try to get one more call in here. Let's see, Diane? No, she's not there. Let's try David in Charlotte, N.C. You're on the air.

DAVID

10:55:07
Good morning. Thank you for having me. Years ago, I lived in Spain. They had a problem there with terrorism. And the people's attitudes seemed to be that if they kill me, that's fine. If they destroy my way of life, that's not. That's far worse. Their crowned prince said a quote I thought was relevant, we can only combat terrorism from within the fortress of our own convictions and with the tools of the rule of law."

DAVID

10:55:39
To me, terrorists aren't necessarily attacking us. They're attacking the rule of law and our way of life. They're coming after us because we're a means to an end. As long as we continue to try to fight them, we're going to keep losing. We need to insist rigidly on a rule of law.

REHM

10:56:03
All right. Thanks for your call. Michael Hirsh.

HIRSH

10:56:07
Yeah, I mean, that's an important point. We want to fight the enemy but do in a lawful and constitutional way. I mean, there's no question about that. But, you know, some of this -- it's interesting -- probably don't have the time to discuss this, but, you know, the administration has kind of tried to redefine the war on terror as more of a law enforcement issue, which is to say to sort of downgrade it.

HIRSH

10:56:30
Lone wolf terrorists like the Boston Marathon bombers are now seen as, you know, law enforcement type issues. And so as we move away from it being a war using troops and, you know, the huge number of drones we're using, as David documented in his book, and to this approach the only thing that's left is the electronic fence around the country in terms of intelligence collection.

REHM

10:56:54
Michael Hirsh of National Journal magazine, author of "At War With Ourselves." Marc Rotenberg, he's executive director of the Electronic Privacy Information Center. He teaches information privacy law at the Georgetown University's Center of Law. And David Sanger of the New York Times, author of "Confront and Conceal: Obama's Secret Wars and Surprising Use of Power." I hope the debate continues. Have a great Thanksgiving.

SANGER

10:57:34
You too, Diane.

ROTENBERG

10:57:35
You too, Diane. Thank you.

REHM

10:57:35
Thank you. And thanks for listening, all. I'm Diane Rehm.
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