 All right, if I could have your attention, please. Thank you so much for coming. This is a great crowd on a Friday afternoon, the day before the holiday weekend, which is a testament, I think, to Assistant Attorney General Carlin. I'm going to do not much more than turn it over to professors at trade and John Carlin. Again, thanks so much for coming and with no further ado. Thank you, Chris. Thank you all for coming out on a beautiful Friday afternoon for this. The zero thing to say, possibly fitting, is that this is being recorded, not live streamed, but from this moment onward, a record is being preserved and will be sent to the Harvard Law School Library for indexing and also put on the web for everyone else. So be aware of that. So delighted, John, that you're willing to join us today for a chat. I guess, first, let me just say quickly, I'm Jonathan Citrin. I teach internet law here at Harvard Law School. I am also a member of the Board of the Electronic Frontier Foundation and a member of something called the NSA Advisory Board. So I have been somewhat immersed in some of these issues from what you'd call multiple perspectives. And John, you are an HLS grad. Is that right? Yes, and it's great to be back on campus. When I was a student here, there was not a keen interest in national security law, nor was it in the 90s an available curriculum or a set of courses. And so I came back here a little while ago. I'd say five years ago or six years and was shocked at the number of courses and at the amount of interest in this field, which really has developed since that time. And when you were here, did you know you wanted to be a prosecutor? Was that sort of what you had your eye on? Looking around and seeing some familiar faces. So when I was here, and I think the programs that you have in place now that allow you to pursue an interest in public interest or in federal government work are fantastic. When I was here, they weren't as well developed. And so I was in the first class of what's called the Heyman Fellowship and was very thankful that it arrived just in time for me. And I did know I was interested in going into federal government work and particularly that I was interested in prosecution. When I was a student here, I did the Harvard Defenders Clinic. Show of hands, is anyone doing that here? Now, interesting. Maybe no overlap with national security law. And became very interested there in some of the criminal justice issues. And that was because you were interested in defense work? Or you thought it'd be good to see that angle before going into prosecution? Now I was interested in criminal law, in a criminal justice system, and particularly I knew that I very much wanted to be in a courtroom. And try cases. And I was certain that I'd be going back to New York to do it. It's been around 15 years, and I never made it back to New York. So just give us a quick thumbnail sketch of what you did after graduating then. So after graduating, I went into the Department of Justice through the Honors Program. And Phil Hyman was very helpful at the time. I know he's still teaching here. I just met with him at suggesting, hey, if you want to get into court quickly, and you're interested in these types of issues, you might want to consider the criminal tax division. So I applied to criminal tax, at which point I had not taken tax. So I took that second semester of my third year and joined the criminal tax division. And I went on a series of details. So these are assignments where you're ostensibly on the books of the criminal tax division, but you end up working at other places in the Department of Justice. And I went to the DC US Attorney's Office and prosecuted domestic violence cases, and particularly cases involving children. And then went to Tucson, Arizona, which at that point, they had closed the border down in San Diego. Tucson was a sleepy office. The New York City of that area of Arizona. Well, it forced me to learn to drive. Yeah. And so I hadn't been out to that region before. At a great time, actually, I went out with a bunch of other lifelong northeasterners. And I was the only one who came back. They're still there. Yeah, OK. Just to be clear, it was the question on everyone's mind. Rattle snake. No, they're still there and enjoy life. In fact, one just became a judge. And then returned to the DC area, actually did do a criminal tax case, including trying one in the Boston courthouse. And then went permanently to the DC US Attorney's Office, where I did what are traditionally local crimes, but are through a federal office in DC, including homicides and sex offense and domestic violence related homicides. And then moved to the federal side of the house, did fraud and public corruption cases, defense contractor, fraud, and began specializing in an area of computer hacking and intellectual property crimes. Growth industry, I understand. Yes, apparently so. You can get tenure with it. I've heard. Good for one train only. One train only. No pun intended. So it has a terrible name, too, the CHIP program. But there were no short shorts and the like. And I went from there to the old reference. For those following along on Wikipedia, that was CHIPS with Ponch and John. Yes. And the person who's fault it was was at that point, the US Attorney out in San Francisco, Bob Mueller, who later became the director of FBI, did the first CHIP program. And presumably, knowing him had no idea that there was a television show with that name. But I went from there to Maine Justice to coordinate that program nationally on technology issues. And then, in every step along the way, except the switch to the US Attorney's Office, I'm doing these different things on details. And then I went over to the FBI to be counseled to Bob Mueller when he was director and then later as chief of staff. And from there. So what year would that have been around just so we're straight? 2007. 2007. And I was at the FBI from 2007 to 2011, so four years with him. And his tenure got unexpectedly extended in 2011. And so I left right after he got confirmed to do the extra two years. The statute was fast, and he could do the extra two years. And went to the National Security Division, which did not exist. It's a brand new division. First new litigating division of the department in about 50 years. And it was created in 2006. Got it. Wonderful. So I know you have a few remarks you want to give. So we're going to hear from John. And then John and I are going to talk a little bit. And then we're going to open it up for questions and comments. I've been given to understand that there is a question tool here. Do you want to talk about that? We have masks in the corner. Not exactly, but we do have. You can visit if you like. If you don't, you can still ask a question in the old fashioned way. And I don't know if a hashtag has been established, but we'll let the collectivity decide on that. A final logistical note, is it only me or is it like 90 degrees in here? I thought you were sweating me. No, exactly. We're going to break them. So we're going to, if you see me on my phone, it means we're talking to the authorities to see if this beautifully overbuilt structure, with great thanks to Justice Kagan, can be having some air conditioning. The facilities have improved a little bit since I was here. It doesn't seem fair. For instance, you don't keep public interest in the closet anymore, because the space that was allotted was in the previous, in the 90s. I did have a student, a prospective student, come to me at one point recently who said, OK, I know that Harvard Law School does public interest, but how is it in corporate law? I was like, wow, that is a flip. So times have indeed evolved. All right, I'm going to cede the floor to you for a bit. You can stand at the podium or stay where you are. I'm good here. Go to town. What I thought I'd do is just give an overview of the National Security Division, what it is, how it was created, and what's a top priority now. So as I said, the National Security Division was created in 2006. And it was one of the later 9-11 related reforms. And it came out of a commission called the WMD Commission. You may be wondering what it had to do with weapons of mass destruction. And so are we. But it was a good recommendation, buried in that report. Judge Silverman was one of the chairs and was very familiar with the workings of the Department of Justice. And it was really a common sense reform. And so far as prior to the creation of the division, the terrorist prosecutors reported through one chain in the criminal division. The counterintelligence or counter-espionage prosecutors reported through a different chain. And the intelligence lawyers reported through yet a third chain. And so there were three different chains. And the people responsible for each of those sections had many other responsibilities on their plate at the time. And so the idea was, pre-9-11, there had been a wall. Most of you have heard about where there were certain legal and cultural prohibitions to the sharing of law enforcement information with intelligence agencies and vice versa, intel agencies to law enforcement. And so certain legal reforms were put in place to allow the sharing of that information. And you put this reform more in the context of a cultural reform. The idea is you should have the criminal prosecutors and the intelligence lawyers sitting side by side under one chain reporting to one official who would see this full scope of the activity to ensure that information was shared and that people work together day in and day out on what we sometimes call an all tools approach. And the idea there is that the criminal justice system is a tool that you can use to disrupt the threat. But you should be focused on what the threats are. Who are the threat actors? Who are the terrorists and what do they want to do? Who are the nation state actors and what do they want to do? And then look to see what are the legally available tools to prevent them from doing what it is that they want to do. And so the criminal justice system might be one tool to do that, but it might be a treasury designation. It might be a commerce designation or use of related sanctions provisions. It might be prosecution by another country outside of the United States, a European partner. It might be state department diplomatic efforts that prevent the threat. It might be a regulatory or civil reform that we should be looking into the available intelligence, be driven by that intelligence to prioritize resources against the threat and then work to stop the threat. And I think our structure, in addition to that, allowed for a one point of contact between the Department of Justice and all of the 16 elements of the intelligence community and also allowed for the Department of Justice to sit at the table in a more concentrated way during National Security Council deliberations where a person in my chair often sits. They call the process it's three tiers usually and there's some tiers below in National Security Council but it'll be assistant secretary level meetings, the names have changed, but interagency policy councils, deputy committee meetings and those will be the relevant deputy secretaries in theory and principles meeting, which essentially is a cabinet meeting but in the space of those who are in the national security space and then they sometimes call those national security council meetings when they're chaired by the president. So with this position, the assistant attorney general for national security usually attends those meetings at the deputy level, alternating with the deputy attorney general and then we staff as appropriate other aspects of the national security council and that's where a lot of the interagency, if you're gonna do an all tools approach, you need to make sure that all the relevant agencies are discussing and sharing information and deciding what the best policy is to prevent a threat and with our structure, we're able to more regularly participate in those conversations and thus weigh in not just with our legal voice, whether something is or is not permissible, but in the policy arena too, whether something is or is not desirable and I think it's also helpful in so far as the intelligence community and Department of Defense speak what can seem like a different language if you are trained in a lawyer and Department of Justice, acronyms and just ways of speaking about what it is that they do and it's helpful to have folks at the department who are used to that and have an understanding of what it means and vice versa as you guys are slowly being warped into speaking. Lawyers speak in a certain way as well and that's true at the Department of Justice and so being sure you'd be able to translate what it is that the lawyers are saying in a way that's going to reach the operators' ears and so National Security Division is serving as a one-stop shop on those types of issues and I'll give a little overview of what we're doing. First priority is going to be preventing a terrorist attack inside the United States and that and against United States persons overseas. That is and will remain a top priority and right now it's very much again in the news and that may mean by overseeing the prosecution of those cases, can't really take a significant step on a international terrorism prosecution under the relevant statutes without getting permission from the National Security Division and the reason for that was a desire to have uniformity and to make sure you are doing that balance to make sure that the criminal system is the right way to be proceeding in the case and that you're protecting intelligent sources and methods. But in addition to prosecution, I also have a group that I wanted to highlight given what's going on lately. A couple weeks ago I was with the president in New York for the UN related meetings where the president chaired a security council meeting that had a unanimous resolution on combating the foreign terrorist fighter threat. It's a threat that they're over at this point. 12,000 foreign fighters in the Syria, Iraq region, they come from countries throughout the world and it's the type of problem that to stop it is gonna take an international coalition and in terms of even numbers alone I wouldn't say that the United States is at the top of that threat pyramid and so many of our partners abroad are very concerned about this threat and wondering what they can do to prevent it. One of those tasks, there's a side meeting that I went to of 29 countries represented by the folks that handle terrorism related issues called the Global Counterterrorism Forum and consistent with the all tools approach I was discussing, we worked through that forum to see what are best practices that both balance civil rights and civil liberties on the one hand and work within a rule of law but on the other hand provide effective tools to use the legal systems of our respective country partners to prosecute would be foreign terrorist fighters and so we adopted a second memorandum there of best practices and in the security council resolution also demanded that countries work to put those practices into their respective laws and so that's part of that all tools approach is building that infrastructure in other countries and working with them, learning lessons from them as well. So those are two priority initiatives on the terrorism side of the house. A third that you've heard discussed is the countering violent extremism and there the idea is that its success would be catching some of these individuals before they hit either the criminal justice system and certainly before they committed terrorist act and in over 80% of these cases according to one study there have been someone who's in a position to watch someone getting radicalized and in a type of position where they could intervene and in those cases to encourage those people to take steps to intervene it within the community before it ever hits the criminal justice system. On the intel side of the house there's a couple of different programs. One is the counter proliferation or export control programs consistent with the all tools approach this is the idea of let's work as a nation to put in regulations with our international partners that prevent the sale in particular of weapons of mass destruction technology to either rogue regimes or terrorist groups and we both work with them in terms of doing the legal vetting for instance treasury designations but also when someone violates the relevant export control regime or designation to bring appropriate criminal charges. One area I wanted to highlight for this group in the Berkman Center is when it comes to national security cyber threats by which I mean threats from terrorist groups or nation states we're trying to apply a similar approach to what we've done in terrorism by which I mean on the terrorist arena in every US attorney's office across the country there are prosecutors specially trained on handling sensitive sources and methods and the FBI has issued an edict that says you shall share your intelligence files with those prosecutors it may be in 95% of those cases it doesn't result in a criminal charge but you wanna have that option available for when you need it and you also may need to use the criminal justice system to obtain evidence or take certain investigative steps. On the cyber side of the house when it came to nation state actors and terrorist groups we were not applying the same approach and when you consider how technology has changed and that the division was first founded up really focused on that terrorism threat I think it makes sense that it wasn't the key focus when they first started but with my background and having worked with the FBI as it transformed to try to meet the cyber threat it was a noticeable gap when I came back over to the national security division so we've tried to apply a similar model in that we created a network of people trained on the bits and the bytes and the particularities of seizing electric evidence on the one hand, electronic evidence on the other hand on the one hand and on the other hand those who were used to handling sensitive sources and methods and familiar with reviewing the intelligence picture that new network which also has a terrible acronym NISCUS, the national security cyber specialist I think not as bad as CHIPS but maybe also less memorable It's a small program, MNISCUS MNISCUS, yes you're getting on the train and so we just started launch that program in 2012 and simultaneously the FBI then issued a similar like they had in terrorism that said what was formally on the intel side of the house now is going to be shared with these prosecutors and someone who used to do these cases criminally I remember when I was at the FBI there was a literal locked door or it was not a wall, it was a locked door but when it turned out to be a nation state actor and I was working the case it went to an FBI squad on the other side of that door that was different than the squad I worked with and I never saw it again which was fine because there was enough to do on the criminal side but I think didn't long term make sense and so with that new approach of looking to see whether there is a criminal option in some of these cases I think it led directly to the case that some of you may be familiar with in Pittsburgh were for the first time we brought criminal charges against five members of the People's Liberation Army unit 61398 for economic espionage that really cut across American industry from nuclear to solar to steel and that was activity that was really espionage, economic espionage but really was theft and what they were doing was stealing information for profit that was clearly being stolen for use by economic competitors with the private companies here in the United States I think for too long we had essentially decriminalized that activity because we weren't looking to see whether or not we could bring criminal cases so while that's the first case I don't think it'll be the last in this regard some folks thought you could never figure out who was behind the keyboard and we've shown that you can they're not the easiest cases but when the facts and evidence lead to someone behind the keyboard we're gonna bring charges and that was part of an all tools approach to try to change the behavior of the actors and ultimately hope create a norm that says it's not acceptable to steal information from private companies for economic gain and that's a similar approach it took years to establish the norm that we applied in the counter proliferation regime and now it's accepted among our partner countries that too is a norm that you don't violate and if you do it can lead to criminal sanctions I think I'll stop there and open it up to questions Great, thank you so much John a lot of what you focused on was the walls locked doors and lack of same between law enforcement and intelligence sides of the house and I just wanted to ask a couple questions to elucidate that a little further one example might be you could see the stereotypical intelligence gathering side of the government in a place where it's getting a lot of information about an adversary and learning a ton and maybe there's prosecutable stuff happening but it feels like no, no, let's leave our sources intact if we do something as noisy as launching a prosecution I mean it's even same on the law enforcement side when do you spring a trap if you're gonna spring it so I'm curious do you see conflict between those who might see the intelligence value of just listening and being aware and being in there versus when you want to actually spring the so-called trap which might sever the intelligence but then bring somebody into the courtroom Yes, absolutely and that's I hadn't realized it was a yes-no question there is absolutely a tension between the two and day in, day out that's the work of many of the attorneys in the national security division who stands as I was describing as a bridge between the world of law enforcement and criminal justice and the intelligence community and they're not, there is no easy answer they're very fact specific decisions and they rely on having a sense of what that overall intelligence picture is about the nature of the threat and when, where and how can you use the criminal justice system to achieve your strategical of diminishing the threat and they're very, so that's a lot of And just walk us through how would a real conflict and a difference of opinion that just can't be resolved by talking it through where does the rubber meet the road? Does it get escalated up to, I don't know some kind of decision maker who thinks that's real Let me divide it out a little bit so the decision as to whether or not there's sufficient evidence to bring a criminal charge and whether you've met your ethical obligations and your obligations under the US Attorney's Manual that is the Attorney General's decision I think it's important that the Department of Justice stay independent in making that analysis and there's been a long historical tradition of the independence of the Department of Justice on those criminal justice decisions but that's different deciding that you have sufficient evidence is different than necessarily using the tool and it can come up in different contexts one for individuals located outside the United States there'll be particularly terrorists there'll be often a National Security Council group that meets and it has all of the relevant agencies from Department of Defense to State to Treasury in the world that we live in to others and we'll share the information what's the complete portrait that we have of this individual or group and then sometimes we'll literally go around the table to see who has what option that they could suggest and so someone might say with a good relationship with ex-country in Europe and we think we've talked to them and they may have an available charge and at Justice we may say we have in these days you call it an Article 3 option but a criminal option that we could bring to the table or we don't as is sometimes the case and then with all of the armed with that information through the National Security Council process decide as to how to affect that operation and I think you've seen in some of the successes that we've had it's multiple prongs of the government even to bring someone back to a criminal justice system so it might be saw recently the conviction of the spokesman for Al Qaeda who was with Bin Laden right after 9-11 in New York that took years and years to accomplish and work of intelligence community in order to track the individual state department to work with countries to see where he was and how we could obtain him law enforcement to bring him back to the United States and prosecutors once he arrived in the United States to prosecute him within nine months of having arrived here through the criminal justice system and you've seen it also with Al Libby in Libya being captured by members of the military and brought to the U.S. courtroom and Abu Qatala one of the allegedly one of the perpetrators of the Benghazi attack who's facing pending charges in the District of Columbia so in those instances you can see how it's multiple prongs even when what you're choosing is the criminal justice system. Now something else you mentioned and your answer was years and years these things don't happen overnight I guess on television the commercial break represents years and years of development and when we come back it's in court Right exactly. Which means that there may be a pipeline of cases only now starting to happen that are fruit of this era you're talking about about increased sharing and cooperation between law enforcement intelligence and I wonder how if I put on the Harvard Defenders hat for a second if I'm defending somebody for which an indictment has been brought there's gonna be a trial there's I'd wanna know all right what evidence is there against the client where has it come from and where can I probe for either a substantive lack of evidence or some misstep in the development that represents like a Miranda rule some other kind of exclusionary thing I can invoke and all of that would point to to the extent that in a criminal case what's being brought to bear as evidence either at trial or in the path of developing what was needed to get the indictment and get to trial if that's coming from the intelligence side of the house what's your sense of how much that fact is and should be disclosed and made vulnerable to probing by the defense or is it sort of just look here's the evidence we can't tell you exactly where it came from how do you think through those issues so I think there's a carefully tailored set of statutes in this regard and the floor is obviously constitutional and you need to preserve the rights of individuals to have a fair trial and be able to effectively confront the evidence against them and the answer sometimes is that we are unable to do that while protecting the sensitive sources and methods and so we do not have a criminal justice system option in that case but often and not always because that really is the answer at times it will be through a variety of legal mechanisms so one would be the CEPA Classified Information Procedures Act and that provides a mechanism to provide the defense the information bless you that they need with court supervision in order to effectively amount effectively put on a defense while at the same time working to protect as you can those sensitive sources and methods that are not necessary to mount that the defense and provides a mechanism for a judge to review that information and make appropriate rulings as they do with other discovery issues you also have portions of the FISA Act that provide for notice and ex parte in camera litigation to review whether or not the evidence was obtained originally in a lawful manner and whether there's appropriate constitutional challenge to how it was obtained and sometimes you could sometimes it will result in a ruling and the judge will say you know ex sensitive source or method that intelligence community has classified needs to be shared in order to bring the case and sometimes they'll decide it's worth it given me despite the loss of the as you put it and despite the loss then being able to gain intelligence that way and sometimes we can't now the headline from which we could rip that people may have seen forget if it was the post of the times had an article in particular about the drug enforcement agency and parallel construction I'm not sure any of us quite well understands the term and so maybe we should just play word association if I say DEA parallel construction what does it make you think of the criminal division not national security division not my table well I was just doing word association I could talk about it in general yeah without reference to the DEA or on the criminal side but it may be that this is true outside of the context of national security law and was true when I was a criminal prosecutor as well when you might want to protect for instance a confidential informant and when I was starting out that was a particular problem in DC because you were seeing a lot of cooperating witnesses get targeted for violence in their neighborhoods and a lot of families were afraid to come forward unless you could figure out a way to protect them against retaliation for participating in the criminal justice system and so what you would look to see in those instances and others is what led you towards the evidence that you are going to use or against a criminal defendant in trial if you reconstruct how you got there how was it if you obtained certain evidence for other purposes or other intelligence for other purposes was it really relevant to you bringing your criminal case and the idea being that if you're predicated on a particular piece of information then it probably is going to trigger discovery and notice issues and it needs to be a right to challenge it if you built your case without that information then you won't so that's a pretty common phenomenon throughout the criminal law and it obviously would have some applicability in national security so another way to look or another time it comes up all the time that some of you folks may be familiar with is when the civil and criminal systems overlap and so it may be in the context of a civil investigation somebody provided information that would be compelled because they had to provide it in the civil context if you were doing that as kind of a pretext for a criminal for the criminal investigation wouldn't be able to use that information in your criminal case and you'd have to show that the evidence that you got in your criminal case was not derived from the information that was obtained in that civil case uh... one last question on law enforcement and intel and then i think we should throw it open and that is uh... i guess in the law enforcement context we tend to know the tools at the disposal of police departments and the fb i whether through television or otherwise we we know how they go about what they do and we also tend to know the contours of protection uh... that uh... the supreme court might articulate or the legislature might pass for this will test my recollection of first year criminal law but the difference in protection level among glove compartment under the seat and trunk my recollection is if you've got something terrible you don't want the police to see the trunk is where it should go that's where you have the best this news you can use uh... from this am i right about that that uh... that used to be the uh... the case law that was most protective of the trunk because it was out of the reach of the person right right not anymore well it depends on what type of uh... evidence that i think when it comes to digital evidence such as a cell phone there's been a recent uh... yes yes yes so i thought you were gonna say well since the introduction of the hatchback it got very complicated but um... i guess that's an example though of the fact that the rule the court articulates is done in a public opinion and allows advisors the crooks as well as advisors to innocent people to say what i just said without fear of eating and abetting or uh... whatever it may be the fact that it's known what the contours of the tool set are and the legal limits are can help the bad folks and i'm wondering given that there are no doubt a lot of people uh... in the wake of the snowden leaks and such feeling like there was a whole scope to surveillance that had not been publicly disclosed or talked about there was just run wide and wiggling his ears every so often uh... what's your sense structurally about the propriety how much the either legal limits that have been articulated are being absorbed how much of those legal limits be publicized and known and how much of the tool kit be known or is keeping the tool itself for the activity itself uh... a secret something really important for the kind of work you're doing uh... so it's a good question there's a lot uh... there's a lot in there so let's start with what's clearly the most important part of your question what's on television and and i think it's an important point here and then when i was trying jury trials uh... there was a show that is still on the air but i'm not popular is now csi and there was a period of time where we talked about the csi effect actually when i how many of you uh... i guess he's retired so i'd allen dershowitz for my uh... criminal is emeritus emeritus i think he always called himself and that the pleasure of working for uh... for a bit but he would always uh... say that before you did a trial that the best thing to do would be to watch tv at night and see what's on tv because that's that's what's gonna be on the minds of your jurors and that's how you should be presenting your case and there was a phenomenon later where uh... believed in the truth of his words called the csi effect where when you'd be presenting to juries they had such a false expectation as to what it is that the police could do and what the available tools and techniques were that if you did not you had to address it and many uh... prosecutors started addressing it directly in the opening statement say this is not csi and you are not going to see a video reconstruction of the crime at the end of this uh... at the end of this trial and so i think right now we're in a similar at just uh... if you do a quick popular cultural survey of how the nsa in the intelligence community are portrayed ranging from homeland to the good wife to uh... enemy of the state enemy of the state damages uh... pretty much every show predates but yes but in almost every one of these shows is there is a the government knows absolutely everything and is listening to all content all the time and be without any supervision cian is a are operating as operators inside the united states and using that information against us persons constantly and you'll see that in polling uh... data and believe it or not it's uh... the overwhelming majority people think that is currently the case that you can be that you can without legal regulation that people looking at us person content uh... all the time and uh... and to about half the people are okay with that uh... so there's it's still a split issue but that's what everyone assumes is happening which ever side of the issue that you're on so that i can uh... tell you from my experience there are those out there consider you don't know what you don't know but uh... that's not it's not the case and so i think there is a very the intelligence regime and national security regime is set up uh... to do intelligence first and i'm giving you some sense of the fact there's always an argument whether you want to use it at all in the criminal system because they want to keep gathering the intelligence and will reveal how uh... they're gathering every time it's used publicly in any context or another giving people some indication of what you know and how you know it so their incentives tend to be direction with an understanding at the end of the day that like everyone working in the system they want to prevent uh... the attack but there's still an institutional uh... bias towards keeping it on the uh... criminal side of the house if you're going to use it you have to provide uh... appropriate uh... notice and allow it to be litigated and the mere fact sometimes that you're able to know what you know even if you don't say how you know it indicates uh... how it is that you know it and so it damages the ability to do intelligence collection it's a constant balancing act i do agree that whenever possible we should try to make as clear as we can what the legal framework or parameters are that becomes particularly difficult in complex technical uh... opinions and because they're so integrally intertwined with the technology that's being used and how it's being used in the legal reasoning that it's hard to to explain how the judge reached what they did without exposing the technique that has been uh... that's a difficult and will be continually difficult issue and it's a policy trade-off at the end of the day and as many of you may have studied there's a regime that's been in place for uh... since the church committee report for good reason to prevent potential uh... abuse of these authorities and it set up a really american approach to the problem and that involved all three branches of government what they did was they said look we get uh... since time immemorial that there are national security needs and there's certain information that we need to keep secret to protect how it is that we're collecting it make sure we can collect it in the future and to conduct oversight we're going to set up a regime involves the same judges that you appear before in criminal and civil cases the fiser court judges they're called a secret court but they're not secret and it wasn't secret before who those judges were uh... where they sat on their uh... day jobs and they are to look at information that's uh... classified and rule uh... you know pursuant to the statute as to whether or not you are with the method in which you're acquiring it it's particularly designed to protect the rights of u.s. persons is appropriate and then they set up a special uh... committees in the in the senate and the house the select committees intelligence committees where representative members from both parties would be kept currently fully informed and conduct oversight of that uh... system so you had the legislative you had uh... the court system on what almost every other country in the world treats as an executive branch function and i think what you're seeing now is a healthy and good debate about whether that contour was sufficient and you could have a process that you agree with and not always agree with the result and wanna uh... tinker around uh... the edges and say it reached x y or z wrong policy result but there has been a protective process in place since that church committee let me open it up uh... grab microphone here i can help wrangle feel free to say who you are since probably we know anyway i'm a one l here i was just working at the belfer center for the last two years over at the kennedy school one of the things i'm sort of interested in is based on the fact that he mentioned pushing against enforcement of indictments for cyber crime methods uh... difficulty of tracking things back it seems as though it's like these things are likely to be under enforcement to the future even if we do see more indictments in this climate a lot of people talked about hacking back of american companies basically doing self-protecting gathering information on their hackers even trying to destroy their attackers computers my question is regardless of what you think about the wisdom of allowing the sort of thing as a general policy a credible case were brought to your attention or the division's attention of american company hacking back against an attacker would this really be a priority for you to prosecute that's uh... an easier one for me to answer because national security division that would not be a nation state or a terrorist and so would not be not only not be a priority would be within the scope of the national security division so an easy non-answer uh... criminal divisions uh... problem i think the general issue that you raise is um... an important one and there clearly be some uh... serious policy concerns about opening up a wild west where people could take self-help remedies but within that vein there's something called active defense that sometimes means hacking back but sometimes means something else since a bunch of bright uh... scholars here something to look at which is right now on solo did active defense at the bar that was terrible there should be some foul points deducted the um... right now i think you've heard director combi and muller use slightly different uh... formulations for the fb i but the essence is every company has been hacked and you think you haven't been hacked is because you don't know yet and what they mean by that is if you're a major company your systems have been breached and can be breached but then there's a question as what occurs once they're inside your system and what type of steps can you take to make it more difficult for the adversary to get what it is that they want what you value the and there within the contours of a company's system i think there's room uh... for folks to do more than they're doing and that's where they're working in terms of uh... defense and also sometimes just like we do in the brick and mortar world to work with the government to put information there that's deliberately that the bad guy gets that then allows us to bring in action and even if we don't ultimately bring in action prevents them from getting something that would be of value to them great torts exam question which now i can't use of uh... putting the uh... plans to a car that in fact won't operate properly on the server so that then the nation state steels it builds it and everybody crashes if i could i know you have to put that that's a serious area where uh... for one of you uh... perhaps more to look at because that's as this world changes i think that's what companies are wrestling with now at what point are they triggering liability outside of the system for steps they take inside of it yes and i imagine the uh... uh... intel crim divide also becomes the intel civil divide the government our government becomes aware of a hacking at a major company do you tell that company again at the risk of uh... compromising what you know yes hi i'm lori i'm a neiman fellow and i'm a british journalist in the u k uh... they have recently announced plans for extremism disruption orders which sounds similar to some of the things you're talking about which uh... they are orders which will focus on uh... preventing the ideology of of extremism before it begins and specifically at a non-legal level so people haven't broken the law but they will be able to be for example preemptively banned from public speaking preemptively banned from uh... using the internet and since uh... clearly as you said information sharing is going on i was wondering what you thought uh... both in the u.s and international context about the ethics of this kind of approach when it comes to preventing people speaking about whatever their own politics may be particularly in the united states which has a much more rigorous stance on freedom of speech one thing that's good about being in a classroom setting and getting reporters questions is confidently not answering them in their entirety uh... but it's uh... the uh... would say is this as we look at talking earlier about the global uh... combating terrorist forum or gc to work with not just uh... the u k but a variety of different countries legal systems and obviously each uh... many countries have drawn different lines than we have while trying to protect uh... the same rights and liberties they do it in different ways and in the united states i don't think there's anyone that has quite the equivalent to our first uh... first amendment and the jurisprudence that follows from it so the way that we wrestle with the problem will inevitably be different than some of our counterparts what they're trying to do um... which would be how do you uh... take action it because before they commit the act director moeller tells a story about how when he was he was newly uh... sworn in as uh... director of the fb i uh... the next early his first week nine eleven he went after uh... september eleventh to brief uh... the president he walked through consistent with his training is yours as a prosecutor and said uh... here's the facts in the evidence here's what we know about the hijacker and did a presentation very tight and then uh... the response from the president was well that's well good but i'm not i'm not interested i mean i'm interested by and uh... primarily in holding them accountable after the fact i want to know what you're doing to prevent the next terrorist attack and so since then the fb is transformed to try to meet that challenge one thing we do in the united states system that sometimes uh... controversial in the attorney general just endorsed in a speech to europe use of undercover operations and in the undercover operation what the fb i will often do consistent with our system in values will say let's say we have someone who's talking the talk of violent extremism but we're not sure whether that's the uh... person who's going to take that act to actually provide material support to uh... particular terrorist group or commit a violent act uh... here at home or abroad and what they'll do is they'll provide that person the opportunity or suppose the opportunity to do it and see whether they take the steps to follow through on their talk if they do and that falls within our criminal justice system and if they don't it does not uh... within uh... uh... britain there were claims that britain had been using some of the intelligence it gathered either to propagandize to be able to uh... create fake information out there or it was credible about people they wanted to discredit or even simply leaking information about uh... enemies would be terrorists that they wanted to discredit within those terrorist communities within the u.s. context is there law around that are there uh... limits on on that kind of activity were it to be conducted by the u.s. uh... i'm trying to i'm not sure i'm totally tracking the activity that you're uh... but i'll say this in terms of countering violent extremism there's uh... an effort to a lot of the uh... it's very slick uh... propaganda campaigns being used through social media by some of these terrorist groups and talking to professionals in this field some of it looks like the same type of quality that we professionally produce and so part of the discussion internationally and here at home has been well how do you counter that type of messaging that makes it look like it's going to be you know a disney movie if you go over and join isle when that is not in fact what's occurring with when you get over to the syria iraq region in the u.s. there's a part of the state department that has worked on i think they're more interested in finding voices that can counter that narrative and figuring out a way to get them on to social media but those are those are truly the people uh... espousing no i was thinking much of the much more controversial example of here's somebody preaching hate but not that anybody's going to arrest or something uh... through our intelligence sources we come to something compromising about that person and then choose to feed it to a reporter or something that that kind of oh yeah if that's uh... you could not do that with uh... u.s. person as the target as a u.s. person is the target of uh... uh... a campaign to and the the natural inverse to that statement then should i infer anything about no on u.s. because that's uh... it is different uh... a or expertise of the more on it on the u.s. person uh... protections thanks for your talk uh... i'm timothy edgram a visiting fellow at brown and i wanted to get back to the ns a for a second and ask you about vice accord and particularly about the vice accord opinions uh... because up until just a few years ago the only thing that was publicly known about the vice accords process was just this it raw number of this is the number of applications that have been sought and this is the number that have been granted but since snowden especially there's been an avalanche of declassified opinions a huge number really detailed opinions that the administration is released all sorts of detailed things about upstream collection internet metadata collection business records things like that that have been really quite a huge change and i guess uh... the question i want to ask you is how do you see this change affecting the work of the vice accord going forward especially since your attorneys kind of appear in front of the vice accord and have to deal with this uh... do you see this becoming routine do we expect opinions will be released on a regular basis after having been declassified with this kind of transparency continue or is this more of a one-off in response to a big crisis involving the stone revelations so i think that uh... director of national intelligence in general council for the uh... the d and i have spoken on this uh... issue to say that there will be a regularized process to look at the opinions and attempt to declassify the system with the conversation we had before that we should always try to get uh... out as best we can the legal architecture if you can do so in a way that doesn't jeopardize sensitive sources and methods probably more awareness now uh... when trying to write the opinion to try to do it in a way where you can segregate out the uh... the technical information that would reveal exactly how you're acquiring it or who it's being acquired from from the legal principle and as i was saying uh... and i know you're expert on uh... law and technology it can be very difficult in when it's when you're addressing a new type of technology because it is so integrally related to discussing those details so uh... and not sure there's a cure-all we're at the end of the day you don't come back to uh... a difficult decision about how much do you want to risk your ability to obtain the information versus the need to have the faith confidence of the american people and what it is you're doing real quick real quick i just i'm aware of the time i want to make sure we see uh... something on the question tool maybe if we do it just like a by sixty minutes get five to ten free would people find that a bonus they want and i feel like we're on a real substantive role here i should ask our guest if that works for you too or yeah got it so i'm gonna i'm gonna take a question from the question tool alright will there be a tangible consequence resulting from the indictment of the chinese military hackers that you mentioned before or is this largely a symbolic act uh... i'm waiting to be like symbolic act next question so i'll say a couple things uh... in in response to that because you get that question uh... fairly often one at the beginning of our uh... use of the criminal justice system against international narcotics kink pins uh... there were many who said why are you bringing criminal charges against these people they're not inside the united states you'll never see them here they've been here and they've been tried and many of them are incarcerated now uh... two with a counter-proliferation and get as i was saying at the beginning of the regime there were individuals who were uh... abroad not a very country was buying into the fact that this was uh... something against international norms subsequently uh... as recently as today uh... you just secured a conviction against an individual named alexa uh... and while the charges uh... he's someone who is known to be a proliferated proliferator i'm stumbling over that word today uh... but he and uh... which criminally charged for violating civil uh... regulations and he was obtained he knew he was under uh... indictment he knew the regulations applied and yet traveled uh... to estonia where he was picked up an extradited to the united states so when we use the criminal justice system with the intent of bringing them here with all the rights of due process of that entails to face their day in court and uh... three again not doing this is effectively decriminalizing the activity and sending the wrong message if we want to have an international norm as we move uh... forward and increasingly interconnected in digital world that is okay to uh... obtain information in this matter and so i think it was important not to decriminalize this activity and use our system when the facts and evidence show that there's somebody accountable at the other end of that keyboard is it a fair part of the calculus in figuring out probably the prudential more than legal limits of our own uh... activities either in offensive cyber stuff or in undertaking surveillance whether there's a symmetry to it with the chinese were doing this on our territory we try to arrest them for we would indict them is it how much does it factor in well that means we probably shouldn't do it ourselves or is there not that kind of symmetry at work at states do what states do and we have our own reasons and ours are noble and maybe other states are less noble i mean how does that calculus work question i know how you're able to read the computers that was the opposite of two hundred fifty five character limit so i'd say in this case uh... this is something that the president said uh... we do not and should not do which is we should not be targeting private companies and for the economic gain of our private companies one thing that's interesting in relation to that norm is every almost every country in the world openly acknowledges having an intelligence service and that they're doing so for uh... national security reasons that's been true and recognize an international law uh... for years there's no country in the world that openly acknowledges that they are stealing economic information for their economic uh... gain and so it to an extent uh... outside of perhaps the halls here uh... i'm not sure there's anyone is articulating that that should be a norm so we shouldn't do it and when we catch up by economic just to be clear you mean tactical economic to figure out what the sealed bid is on a Boeing uh... airliner bid and then to know to go a dollar less or something is that what you mean when you say economic yes private uh... economic game or uh... stealing uh... you're attempting to buy in in some of these instances you're trying to buy a technology and instead of purchasing it you steal the same technology and then you end up not completing that transaction stealing that technology for the purpose of financial gain is what you're saying we wouldn't do for the purposes of financial yes got it my name is no longer i teach information policy courses kennedy school uh... well uh... uh... uh... uh... So they do, by the change in that, they do engage actors and things like that. So my question is to you is whether you would further define what you use as legally available tools and whether that includes constitutional amendments of the 1st, 4th and the 5th amendments in that I recognize that all national security community members including officers and the defense department all swear to uphold and defend the constitution of the United States against all enemies born at domestic. So when they have these conflicts, they're not only legally but ethical and maybe reach the Newenburg standards of behavior. After Snowden's disclosure along with WikiLeaks, it appears to be so. Many have crossed that line in terms of the legality particularly in the 4th amendment. You mentioned that success in national security was prevention of a crime. At what point does this lead to a pre-crime intervention and the use of information before a crime is actually committed to basically deny persons rights that they would otherwise be entitled to. So that's what I was going to add a little bit I think into the other question. So in our system when you're using the criminal justice system as a tool to prevent a terrorist act, we do not bring charges against someone for their views or beliefs. And so that's where I think the use of, you'll see in our system the use of undercover operations where you will use the undercover operation to see whether the individual who's indicated a desire, a belief in violent extremism or espouses views of a foreign terrorist organization but you put to them the question of are they going to take the actual step? Are they going to pull the trigger on what they think is a bazooka? Are they going to press a button on what they think is an explosive device? And it's when they take those concrete steps that we have available criminal charges and as you know as a former prosecutor that gets put to its burden of proof by judges and defense attorneys. And to date we have not had someone successfully employ the entrapment defense when confronted with that type of evidence. And I think that shows the care that the agents have used in using what needs to be a carefully monitored technique. On one just broader, I think that reasonable minds can and do differ over both the statutory interpretation of 215, the provision of the Patriot Act that was used to collect certain metadata telephone records and also over the constitutionality of it and that will ultimately be a decision for the courts to decide. But when under our system you've appropriately submitted the information to a FISA court judge pursuant to the statute, the judge has ruled and granted an order and then it goes to the operational agency or NSA to execute that order. I do think it's unfair to the professionals who have followed the system that we've set up sought to comply with it to brand them as somehow violating which I'm not saying you are doing but I have heard folks do, violating their oath to protect the constitution. They did what we asked them to do in terms of following the appropriate procedures and briefing the relevant committees. It's up to us and it's important debate to have whether we think those are sufficient protections but that's not a rogue actor acting with bad intent. That's someone trying to follow the laws as our congressmen and senators have written them the best they can and as the courts have interpreted them. Well, we end on a note that we could surely continue on at great length but thank you all for the extra ten minutes. I think it was actually well worth it. Thank you, John, for coming up and talking to us.