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tv   Key Capitol Hill Hearings  CSPAN  December 8, 2016 12:30pm-4:01pm EST

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president-elect donald trump until he is sworn into office and i can understand that. but these attacks on our country have already happened. they already happened. this is not something of a future threat. this has already been done and unless we act, it may very well happen again. for these reasons yesterday i joined democratic whip steny hoyer and ranking members of the committees on arms services, homeland security, intelligence, judiciary and foreign affairs and we did ourself what is this committee did not. we sent a letter to the president requesting that all members, that all of us, all members of congress, democrats and republicans be provided by the opportunity to receive a classified briefing by the
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intelligence community with the most up-to-date information on this issue. this is not a partisan issue and it should not be. is republican senator lindsey graham has called for this type of information saying that republicans should not sit on the sidelines and let allegations about foreign governments interfering in our election go unanswered just because it may have been beneficial to them in this instance. republican senator marco rubio put it even more bluntly saying, "today it is the democrats, tomorrow it could be us." the bottom line is that this is not a democratic issue and it is not a republican issue. this is an american issue. elections are a core american
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value and are central to our democracy. and when any foreign interference with our elections should be of the greatest concern to everybody single member of this congress the american people deserve as much information as possible about these threats and the actions their government is taking to address them. as i said to my constituents over and over again in the last election and during these times this is bigger than hillary clinton, this is bigger than donald trump. this is about a struggle for the soul of our democracy and so it is our job to ensure that we get this kind of information since it is our duty to make sure that our democracy stands strong and that our children's children can have a democracy just as strong
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as the one that we have experienced and with that i yield back. >> we'll hold the record open for five legislative days for any members who would like to commit a written statement. we'll now recognize our panel of witnesses. please to welcome mr. j. william leonard, former director of the information security oversight office. mr. stephen aftergood, director of the project on government secrecy at the federation of american scientists, mr. tom blanton, director of the national security archive at the george washington university, and mr. scott amey -- i want to make sure i pronounce that properly, mr. scott amey general counsel for the project on oversight. we welcome and thank you for being here. pursuant to committee rules all witnesses are sworn to be testified. do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the
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truth. >> i do. >> thank you, you may be seated. let the record reflect all conditions withes answered in the affirmative. in order if to allow time for discussion we would appreciate you limiting your verbal comments to no greater than five minutes so members can have ample time to ask questions, your written statement and extraneous materials will be entered into the record. mr. leonard, you're recognized for five minutes. and the microphones in this committee, you have to straighten them up and put them right up uncomfortably close. thank you. >> thank you, mr. chairman, mr. cummings, members of the committee, appreciate the opportunity to attend this meeting this morning. the ability and authority to classify national security information is a critical tool of the federal government and its leaders to protect our nation and its citizens however when negligently or recklessly applied overclassification of information can undermine the integrity of the classification system and create needless impediments transparency that
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can undermine our form of government and its constitutional system of checks and balances. i have come to the conclusion that on its own the executive branch is incapable and unwilling to achieve true reform in this area. incapable in that absent external pressure from the legislative or judiciary branchs from our government true reform within the executive branch when the matter involves the equities of multiple agencies can only be achieved with the direct leadership emanating from the white house. over the past 40 years we've seen one white house led attempt at classification reform, and that was in the 1990s. bureaucracies response to those attempts were typical -- delay and food drag because agency officials know sooner or later every administration eventually goes away, providing opportunities for rollback. with respect to the executive branch's unwilling to implement real classification reform, i believe it's unreasonable to expect it to do so primarily since the unconstrained ability to classify information is such an attractive tool for any
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administration to facilitate implementation of its national security agenda. in this regard, especially in the years since 9/11, we've seen successive administrations lay claim to new and novel authorities and wrap these claims in classification. this can amount to unchecked executive power. while the president must have the ability to interpret and define the constitutional authority of the office and at times to act unilaterally, the limit of the president's authority to act unilaterally are defined by the willingness of congress and the courts to constrain him. of course before the congress and courts can constrain presidential claims to inherent unilateral powers they must first be aware of the claims yet a long-recognized power of presidents to classify and restrict the dissemination of information in the interest of national security to include access by congress or the courts. the combination of these two powers -- when the president lays claim to inherent powers to act unilaterally but does so in
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secret, can equate to the very open-ended non-circumscribed executive authority that the constitution framers sought to avoid in constructing a system of checks and balances, thus absent on going congressional oversight or judiciary review of assertions of classification, no one should be surprised that the authority to class information is routinely abused in matters both big and small. i've attached my formal statements specific examples of classification abuse relating to three criminal cases in which the prosecution ultimately did not prevail in large part due to government overreach and claims certain information was classified. in each of these cases the government abused the classification system and used it for other than its intended purpose. i believe there are steps congress can take in order to address this matter. the first deals with enforcing accountability. over the past several decades a significant number of individuals have rightly been held accountable for improperly handling classified information.
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to my knowledge, during this same period, no one has ever been held accountable and subjected to sanctions for abusing the system and improperly classifying information. despite the fact that the president's executive order governing this authority treats unauthorized disclosures of classified information and inappropriate classification of information as equal violations of the order subjecting perpetrators to comparable sanctions. absent real accountability it's no surprise that overclassification occurs with im impunity. a secondary ya worthy of possible legislative attention that of providing a mechanism for routine independent export review of agency classification decisions, especially as a tool to be made available to the executive's two co-equal branches of government when exercising congressional oversight or judicial action to which they can come to their own independent judgment as to the appropriateness of executive assertions of classifications. traditionally both congress and the courts are understandably
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deferential to such assertions but nonetheless when applying the controls of classification, government officials are obligated to follow the standards set forth by the president and not exceed the governing orders, prohibitions and limitations. thus it's not only possible but entirely appropriate to conduct the standards-based review of classification decisions. i've attached to my formal statement one potential methodology for such reviews. i applaud this committee for focusing on this critical topic to our nation's well-being and i thank you for inviting me here today, mr. chairman, i'll be happy to answer questions that you or other committee members might have. >> thank you. now there's a model for ending right at the five-minute mark. mr. aftergood, i challenge you to come within one second of that mark as well but you're now recognized for five minutes. >> thank you, mr. chairman, and ranking member cummings. as you know and as you really expressed very well, overclassification presents many kinds of problems. it makes your oversight job more
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difficult. it incurs substantial financial and operational costs and it often leaves the public in the dark about national security matters of urgent importance that they should be aware of. why do we even have overclassification? i think there are many reasons. for one thing, it's easier for officials to restrict access to information without carefully weighing the pros and cons of what should be disclosed. overclassification many times is simply the path of least resistance. unchecked classification ask also serve the political interests of the classifiers. it's a way to manage public perceptions, to advance an agenda, to limit oversight, or simply to gain a form of political advantage. so what is the solution to overclassification? i don't think there is a single solution. i discussed several partial
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solutions in my written statement. many of those solutions depend on congress to assert itself and to affirm its own institutional interests. congress is not a spectator and it should not be a victim when it comes to overclassification. it is a co-equal branch of government. in the executive branch, there are lots of fine and conscientious people who are involved in classification policy. fortunately, but we should not have to rely on their skbegty. we rely instead on congress to exercise checks and balances in performing its routine oversight duties. finally i would like to say that we are in a peculiar moment in our history that makes this issue particularly urgent. everything i've just said about overclassification could have been said ten years ago or 20
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years ago. this is a stubborn and persistent problem. but there is something different today. we're living in a period of unusual political instability that i believe requires even greater transparency. almost everyday we see increased expressions of hostility against religious and ethnic minorities. so-called fake news has lately resulted in actual acts of violence here in washington, d.c. in the past week. and it seems that our political institutions are under a subtle form of attack by foreign actors as the ranking member dpiscusse. this is not a normal situation and it's not the way that things have always been. what complicates things further is that the incoming administration, at least during the election cycle has indicated policy preferences that depart
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significantly from existing law and policy in areas such as foreign policy, questions of whether or not to engage in torture, questions involving freedom of religion in some cases these raise basic constitutional issues. so the bottom line is that we are entering a turbulent time. reducing overclassification and increasing transparency will not solve our problems but if we fail to reduce overclassification we are going to make those problems worse and harder to solve. thank you again for holding this hearing and for the essential work of oversight that you do. i would be glad to answer any questions you may have. >> thank you. mr. blanton, you're now recognized for five minutes. >> >> i'm certainly not going to match those timings. he did five minutes, he did four
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minutes, it was outstanding. thank you, mr. chairman and thank you ranking member cummings and other distinguished members of this committee for having me here today. i'm here to make three points. one of them is a thank you for the freedom of information act amendments that y'all mentioned because it's a model for what you can do here on classification. second is to reinforce the message of the moynihan commission report. it was actually moyne ham, come bast, jesse helms, john podesta commission. so you can tell when it's annan bipartisan, it's something to pay attention to and the number-one recommendation was to pass a law. to govern and fix this system. the third thing i'm here to tell you is that when a security official or officials tell you something is classified, don't believe them. most of the time they're wrong. 50% to 90% of the time as the chairman commented, they're wrong so don't believe them. i'll back that up with a few examples but first, the freedom
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of information act amendments and why that's a model. you've already had an impact. y'all, this committee was the leaders in this house of representatives to get those amendments passed and already the central intelligence agency has released its bay of pigs draft history they locked up for 30 years. on what grounds? well, when you read it you find out the grounds. the historian who wrote it and drafted it said after more than 20 years it appears that fear of exposing the agency's dirty linen rather than any significant security information is what prompts continued denial of request for release of these records. that's the norm in the bureaucracy. your amendments broke this loose, the cia historian wrote on the back "well, shucks, recent 2016 changes in the freedom of information act requires us to release some drafts that are responsive to foya reques foia requests." you did it by statutes. you can do it to the
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classification system and i recommend the detailed list of recommendations in the back of this extraordinary report, the moynihan come bes report for how you can do that. you can build in cost benefit into the originating classification decision. you can build in assessments of what's the rell risk? what's the real vulnerability? what's the freedom of cost to the public and efficient government operations from classifying? you can do that on the front end. you can build in a declassification board with power to release so you get a rational declassification system on the back end so the system doesn't get completely gummed up with unnecessary secrets, you can move those 50% to 90% of what shouldn't be secret out to the public. you can do that but you have to do it by statute. as bill leonard says, the government is not going to fix itself. you have to do it. my third point is just don't believe them on classification. last month we got a nice letter from the joint chiefs of staff in answer to a freedom of
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information request. that's the document they gave us. it's all blacked out because releasing it would damage our national security. seriously damage. this is at the secret level, right? it was fascinating because our staff person took a look and said, whoa, that's the joint chiefs advice on a presidential policy directive back in july of 1986. that looks kind of familiar. and he flipped back in the files, turned out we got it in 2010 in full. that made us go look at the cover letter? you know what the cover letter says? it says "we have coordinated your freedom of information review in consultation with the joint staff and the national security council." this is from the office of secretary of defense. it says "osd and nsc have no objection to declassification in full, however mr. mark patrick of the joint staff thinks it ought to be classified and thus
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you got the black blotches. classic case. one office doesn't agree with another office. one says it's been released for six years, another says it's going to nation our national security. attached to my testimony i have a half dozen other examples where it's not even one office or another office, it's the same reviewer one week apart had diametrically opposed views of what would damage our national security from release. so bottom line, mr. chairman, ranking member, don't believe them. thank you very much for your time, i welcome your questions. >> thank you, we love your passion for it, it's good. mr. amey, you're recognized for five minutes. >> that's a tough act to follow. good morning. pogo has always recognized the tension between openness and projecting legitimate government secrets but the executive branch frequently overclassifies more information than is necessary and has developed new ways to conceal government information. such obstructions create barriers to public deliberations on policy and government
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spending, impede sharing and harm efforts to identify and remedy waste, fraud, and abuse. the 9/11 commission said it simply, secrecy while necessary can also harm oversight. sometimes the result of classification is not for the legitimate need of secrecy but the concealment of embarrassing information which creates public distrust. there are five main points that i want to briefly discuss today. overclassification, retroactive classification, controlled unclassified information, treatment in handling cases and finally executive branch use of secret laws. in overclassification, overclassification might be a form of either excessive redactions or improper markings. reports by the national security archive and isu show the classification process is mostly heading in the right direction and we have seen some improvement over the last few years, especially considering the amount of electronic documents that have to be
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reviewed. but one number is a concern. in 2015, classification decisions were overturned in whole or part in over 50% of the challenges. that was 411 cases411 cases ove out of 814 decisions that were made. additionally, we've heard stories about the lack of clarity and authority and standards leading different agencies come to different conclusions as mr. blanton just discussed. concerned also about the lack of clarity what are constitutes intelligence sources and methods which also can lead to overclassification. finally classifications aren't free. total security classification costs can exceeded $16 billion back in 2015. the moynihan commission has an excellent recommendation to improve the system. no longer be based on damage to national security. additional factors such as cost
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of protection, vulnerability, threat, rick, value of the information and public benefit from release could also be considered when making classification decisions. poe go is in agreement such factors should be considered to reduce executive branch secrecy. on the issue of retroactive classification, for years poe go expressed concerns brps activities to retroactively classify government information. we were involved in instances involving area 51 and unclassified briefings to members of congress in a whistle blower retaliation case. poe go believes reviews should include a comprehensive look at issues affecting retroactive classification including failures to classify the information appropriately, how frequent it occurs what, considerations were given to the information if it's publicly available and what constitutes constitutional issues related to prairie strants. on ot issue of controlled
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unclassified information, there's been a proliferation of cui and by 2010, there were over 100 different cui markings within government agencies. we've expressed -- we've witnessed examples of misuse and poe go hopes the committee will the consider providing oversight of the implementation of the recently released cui regulations. we've recently heard an example and it was something we had complained about during the process that employees at dhs when given a foia train were also instructed that if they have a foia that comes in and the information is marked cui, it should not be release. that's opposite to the executive order the president issued as well as the language in the final regulation from there and isu. unequal treatment in handling cases. in the past few years, we've witnessed numerous instances of mishandling of classified or protected information. i go into more detail in my written testimony. poe go thinks if an intent is
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considered and high profile cases can involving senior officials, it should be considered as well as other factors in whistleblower cases. secret law, poe go voiced many concerns about the executive branch use of secret law. how we come to conclusions in striking the right balance between our security and rights is imperative. and the legal interpretations cannot be cloaked in secrecy. secret law propose poses a serious harm to our democracy. our recommendations are in our written testimony but there's one issue and point that the 9/11 commission made that is important about nurturing that the current system nutures overclassification. there are no punishments for not sharing information. agencies uphold a need to note culture of protecting rather than a need to share culture of integration. thank you for inviting me to testify. i look forward to working with the committee and further exploring how to protect legitimately classified information and reducing government secrecy and costs.
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>> i appreciate all the opening statements. we'll now recognize the gentleman from mr. michigan, mr. walberg, for might have been minutes. >> thank you for holding this hearing. it's something that probably many of us have surmised was going on. it certainly goes to a frustrating level. and i appreciate the fact that in this report that you pointed out, mr. chairman, pentagon buries evidence of $125 billion in bureaucratic waste done by two reporters one of which certainly has established credentials for doing investigative reporting. we ought to take this seriously, but i think when i read this, the frustrating thing was the number of assertions that lawmakers don't want to do anything about this because of the impact in their districts. and certainly, there is evidence to show that, but i think this
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committee has lawmakers better than that, and i hope that this is a real start. mr. amey, according to that article, in the "washington post" the department of defense first commissioned and then hid, hid the unflattering results and did it aggressively hid that with retribution offered threats, you name it of the waste and inefficiencies. are you familiar with the report? >> yes. >> i would expect so. in your view, what reasons could the dod have had to keep the results of the report from the republic? >> oh, boy. you're putting me on the spot on trying to predict what the department of defense was thinking but i would imagine, i don't know. i mean, it's very difficult because the report is the actually on the internet. we found it yesterday when the story came out. it has been on the internet since that time.
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the defense business commission actually had a slide presentation, a summary of the report on its website. and so we're trying to actually figure out and we actually reaped out to the reporters to try to figure out where the secrecy was coming in and what was taking place. i would imagine it's public embarrassment. at the end of the day, we're talking about the department of defense trying to protect $125 billion and the fact that they can't pass an audit and other scrutiny on top of them that i think that this was just an issue of we didn't want this to get out. so let's try to keep it under wraps. >> i'm sure $125 billion doesn't sound unreasonable to you. >> no, sir. we've been saying it for years that between when is you look at goods and services, most of my work is on contract oversight. when you look at department of defense, goods and services, we factored yeah, we're probably in the tens to hundreds of billions of dollars worth of waste. >> as i read that, it just goes
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back to simple truth that a bureaucracy will protect itself. and a bureaucracy does not want to be downsized in flew way, shape, or form. in a time of sequestration, in a time when our war fighters and their families, et cetera are, suffering reductions for this type of dollar amount to be held over and attempted at least to be hid from us is unconscionable to think that this could as i've read cover the cost operational costs of 50 army brigades. that's pretty significant or 3,000 f-35 strike forces or 10 strike forces of carriers. that is just unconscionable that this would have been disregarded and hidden. what can congress do to ensure that agencies engage in this
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type of self-analysis but then also use results to improve existing operations? >> it's a wonderful question because that's exactly what the point is is at the end of the day, we've asked for inventories of contracts of inventories of what we're buying. how many services are being provide. unfortunately, there was actually a chart out a few years ago that said that the government doesn't often know how much the government is spending and what it's being used for. that's where we need to get to the audits, specific audits, just not check the box. we need to specific audit dits of specific spending. dcaa is involved in the process but that's where i think we need to go a lot deep near the specific programs and get to the heart of why we see so many overruns on some of these programs. there's a lot of waste out there. we have to come to the solution how to remedy it from the beginning. i mean, that's let's stop try too put the milk back in the
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bottle after the fact. let's do it before billions is wasted. >> i trust that because of this hearing and others, i would assume that we can do that. plus starting new an fresh on january 20th, as well that this lesson will not be lost because frankly, this is the number one responsibility of our federal government to make sure that we have the resources available, do what's necessary to defend and protect our citizens and not just protect the bureaucracy. i yield back. >> thank the gentleman. the chair now recognizes ranking member mr. cummings for five minutes. >> thank you very much, mr. chair. mr. aftergood, and many other americans have serious concerns with reports of hacking and other actions by the russian government interfere with the 2016 presidential election. it the intelligence community has confirmed that the russian government or its associated entities hacked the e-mail ksts
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individuals and political organizations before the presidential election. the director of national national security agency admiral michael rogers said, and i quote, there shouldn't be any doubt in anybody's minds this was not something that was done casually. this was not something that was done by chance. this was not a target that was selected purely arbitrary. this was a conscious effort by a nation state to team achieve a specific effect." do you believe this is an important issue for our country? and i notice in your testimony you talked about classification and you talked about the state that we find ourselves in overall today and i am just curious. >> it's a crucial issue.
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it the integrity of the electoral process is absolutely fundamental. if we don't have credible authoritative elections, the foundation of our political system is washed away. so yes, it's an extremely serious question. i think the blanket of classification that has been spread over it needs to be re-evaluated. even before that happens, congress needs to understand exactly what did happen. there are actually several questions here. what kind of attack occurred. what are our vulnerabilities, and what steps it can be taken to prevent future attacks of this kind. and i think all of those questionses are wide open. i would also say though that it's important that this not had
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strew on /* construesed as an attempt to undermine the incoming administration because that would only aggravate whatever damage has already been done at least in my opinion. so you know, tilled hope that this be undertaken as you said on a bipartisan basis to say look, we've got a problem. we need to deal with it. >> i agree with you. i think it's definitely a bipartisan issue. the fbi has refused to disclose any information about its investigation of these hacks. this is the opposite approach from the one the fbi took in the clinton e-mail investigation. i wrote to our chairman on november 17th, 2016 to request na our committee conduct a bipartisan investigation into russia's role in interfering with and influencing the presidential election again. not to take anything away from
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president-elect trump but just the idea of it. this should bother every single american even republican lindsey graham, senator graham, called for an investigation into it. outside experts have also called for congress to act. a group of 158 scholars from colleges and universities around the country sent congress a letter calling for a congressional investigation. a group of experts on cybersecurity, defense and fair elections wrote and i quote, this evidence made available in an investigation might show that foreign powers have played an important role and might show that such a role was negligible. at this juncture, we can only say that existing reports are plausible enough and publicly expressed enough to warrant congress's full attention and
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swift action." mr. blanton, do you believe there's a role for congress in investigating these allegations? >> yes, sir. to me, one of the great headlines of the whole election season appeared in the "washington post" on november 1st when the fbi was trying to explain why it didn't sign on to that statement from the director of national intelligence and the homeland security, and the headline read, comey was concerned publicly blaming russia for hacks of democrats could appear too political in run-up to elections. that's "the washington post" headline. it's an interesting reticence as you point out. congress should get your classified briefings. you should understand the hacking. there's a huge problem. we are constructing at the national security archive website at george washington university a whole cybervault trying to get declassified much
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of the cybersecurity policy documents because as former direct ker michael hayden, said one of the problems with cybersecurity is it was born classified. it grew up in this hot house where it was shielded a compartments but we really need is a robust debate that the involves academics, civil libertarians, tech cans this committee and this congress. that cybervault is beginning to get populated but it needs more it, needs this congress to get into this. it needs to press the intelligence community and homeland security to release the basis of their attributions. that's the hardest part as you well know, mr. cummings. >> one last thing, mr. chairman. i have said it and i guess at 65 i look back and i and not so much worried about my life. i'm worried about future generations. the idea, i mean i just see i'm very concerned about our
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democracy. mr. aftergood, i appreciate your comments because it seems as if you can just chop away and chip away and the next thing you know, you won't have a democracy. do you all have similar concerns? any of you? >> yes, mr. cummings. you know, i think you know, obviously my insights are only based upon what i've seen in open source material and whatever. i do know from being based on my past experiences this is something straight out of the russian playbook. we've seen it repeatedly happen in europe especially in eastern europe and things along those lines. in fact, it's straight out of the kgb playbook during cold war. it was known as special measures back then and the use of disinformation and things along those lines. so clearly it does go at the very fabric and again, this is example of what i made reference
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to in my opening comment in terms of the impact that deny dg information to the congress can have in terms of the congress's own ability then to carry out its article 1 constitutional authorities which essentially is oversight. >> thank you. >> if i could make one more comment on that issue. i think we've got to look at this question of hacking and attribution and roles with an eye to what's the long-term fix? if you look at what the obama administration achieved with china, the price of a state visit for the head of state of china was that china had to stop its hacking. and that whole arm of the people's liberation army kind of went on hold. and the question one of the documents first documents we
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published in the cybervault was the directive that authorized our national security agency to do offensive cyber operations and that was in 1997. that was in 1997. i think one of the things congress has to look at when it's trying to figure out who is hacking us and what's the damage is what's the fix. we have to end up with new international norms governing cyber war because our country is the most vulnerable in the cyber sphere. it's in our national security interests to impose rules on other folks. and to cut the deals like president obama did with president gi to restrain us to, restrain them, it will also restrain us. that's in our interest. >> i would ask our panelists to help us keep within our five minutes. we've got a number of people that want to ask questions. if we can both ways. the chair now recognizes mr. fahrenheithold for five minutes. >> thank you, mr. chairman. mr. amey, you mentioned there's
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no penalty for overclassification. what would you suggest that we do? obviously, you would want some penalty for self-serving classification. what other areas would you -- what would you suggest as a potential punishment or do you just make it illegal with no punishment? >> well, i think that's, there has to be some punishment. we can debate what the punishment will be. there has to be some kind of civil, criminal or administrative punishment that happens. currently things are marked and at least with classification, there is at least a better process. i mean a lot of what we've also been concerned with is this you know, in the old days it was fouo with the controlled unclassified information, the cui out there is that anybody that thinks something can be stamped cui, they put a stamp and all of a sudden that has dissemination control on it and it can't be shared and there's
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questions if we people can't learn about it, how can we foia it. we have to figure out what the punishment will be. i'm sure the other panelists have ideas, as well. there has to be something. >> so let's talk a little bit. this committee has had pretty good success with the ig community where within each agency, there's an independent inspector general that does investigations. we've had success with chief information chief technology officers it under fa tara. is there a model in which we create within all agencies a classification office or are we better offsetting up something outside the agency certainly on longer term move something within the national archives where there's a method for declassification. we'll start with you, mr. blanton and let anybody else weigh inning. > excellent, excellent question. all i can do is point back to some of the lessons off history.
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which are the times when we've had real success in forcing unneeded secrets out of the system was when congress took action with the nazi war crimes, records bill with the jfk assassination records bill. it set up blue ribbon panels outside and inside. >> part of our problem here in congress is we can do a lot of things. we need to your suggestions on what specifically to do. i understand that that's probably more in-depth we can get in in the 2 1/2 minutes i have left. mr. leonard, do you want to weigh in? >> yes, sir. i'm a big advocate of the ig's involvement in these types you have issues. having been external to agencies when i was at isu, obviously part of the federal government but yet an outsider, i was very much limited to what i could do when dealing with cia or even the department of defense or what have you. igs don't experience those limitations to the same extent.
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plus i have the dual reporting responsibilities in both the executive and legislative branch your. >> suggestion might be expand the responsibility to the igs? >> absolutely. there was the 2010 reducing overclassification act which assigned specific responsibilities to the ig. i believe those types of things can be given the proper training, igs could be very effective in this area. >> yes, mr. aftergood. >> one hopeful sign in current classification policy is the growth in classification challenges from within the system. the current executive order allows people who have access to classified information to challenge its classification status and to say that you know, wait a minute, this shouldn't be classified. in the most it is year, the number of internal classification challenges reached a record high of more than 900. and of those challenges, more
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than 40% were granted. that is a trend that i think could be built on. if the system can be made more and more self-correcting where people inside the system themselves are finding errors and helping to adjust them. >> one final question before i'm completely out of time. this committee and other committees often get classified information in requests in response to our requests for information as part of our oversight responsibilities. do you think it would be appropriate to create a mechanism for congress once we've read that and said this is crazy. this doesn't need to be classified? do you think congress should have the ability to declassify material? does anybody think we shouldn't? >> i believe congress should, in fact, some committees by virtue of rules have empowered themselves with that option. but to my none have never been acknowledged. it's a dicey issue but to equal
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branch afc government. >> you look like you wanted to weigh in. >> in the final cui rule, that's one of the things we fought for. orally there was only allowed to be a challenge internally. we fought it could be externally or internally. the same process should be applied to classified information, as well. >> thank you. my time has expired. >> the chau now recognizes miss watson coleman. >> thank you to each of you for raising what i think is an important complex list of issues actually. and i recognize that we need to to be talking about security first. we need to balance. we need to accountability and fairness. so this is a huge area with so many people interacting. and many cases there's disagreement among agencies and within agencies. and a lot has to be done here. i wanted to ask a series of questions and so i hope you it will answer them as sort of succinctly as possible recognizing you're only going to give me sort of the top lines.
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i want to start with you mr. blanton. you testified about the recommendations of the moynihan commission more than 20 years ago. i want to have a reaction from you as to why you think congress has not moved to fix this classification system. >> i'm no expert on congress. i assume that you could give them far more sophisticated answer than i could. i think steve aftergood testified at one of the congressional hearings in 199 when senator shems was alive. they were in many powerful positions and even they didn't push through their recommendations. my own sense is there wasn't enough of a notion of crisis. and we've got a crisis today i think in the classification system. >> i think that you're quite accurate on that that we may be in a situation right now where we are in an unprecedented environment. plaintiff aftergood, would you like to comment to that? >> you know, the moynihan commission report itself
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included an apen dix of previous studies from previous decades that have also not involved the problem. here we are 20 years later looking back at the moynihan commission. it may it be the rem addition didn't quite capture the issue properly. it seems to me that a law on secrecy is a means to an end. it's not the end. i would think about what is the end that you really want and then go for that. and the end that you really want is greater congressional control over what is or is not classified. focus on that, go for that. if there are particular areas particular topical areas that need classification, you dedallasfication, mandate their declassification. >> so probably and the end result should be the kinds of things that i sort of mentioned when i opened up. the issue of security and balance and fairness and accountability and now we get there. mr. blanton again, you talked
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about a possible reform that could be made by statute. one of those would be to implement a life cycle of secrets. would you talk to me a little bit about what that is? >> in the most straightforward version, it was in the freedom of information amendments. it's like a 25-year sunset for deliberative process. the reality of our classification system, one of the reasons it's entering crisis, we've got a tsunami of electronic records. we're talking petty byes of information. we're not going to be able to do page by page review which is what our declass system currently consists. >> we have to build in automatic relations for entire categories of records without review. and that i think is going to be the only way to deal with those electronic records. life cycle is a summary term to say we've got to put sunsets on the secrets. you've got to have better decisions on the front end that build in the sunsets and then automatic release. otherwise, we're sunk.
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>> i believe it was your testimony that i read where you said in this age of technology we can take care of those things that are sensitive in nature. personal information that could be deleted automatically if it's programmed to do so? >> yes, ma'am. that's the build holdup in releasing the state department cables. they say they've got do look at every single cable to make sure there's no social security number or phone number there. i can't think of anything that is more audmated than searching for that number. >> i want to ask two questions here. number one is, is it currently a situation where each agency is responsible for classifying its information? even though that information might it be shared with other agencies and involve other agencies? and lastly, anybody can respond to this. is there a proposal where this sort of classification consideration would go into a
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sort of multidisciplined entity where those things could be vetted under standards and circumstances and then sort of move in a way that agencies can sort of agree on the ground levels and would reduce the amount of classification? >> that entity exists. it was represented bid moynihan. it's called the national declassification center but the reality is, it doesn't have the power, maybe the will to override those agencies so you get a constant equity referral where the agencies all get a bite at the apple. and one of the recommendations in my testimony is, empower that center. make the decisions. do a sunset. if something's older than 25 years that, center should be able to review it. >> that empowerment require our legislative, my last, i'm sorry. does that require our legislative action to reconfigure this and empower in a different way. >> yes, ma'am, absolutely. >> thank you, mr. chairman. >> thank the gentle lady.
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the chair recognizes mr. desantos for five minutes. >> thank you, mr. chairman. i appreciate the chairman and the invitation for congress to be involved in this. but i want to just start at the beginning. i just ask everybody does everyone agree that at some level, the executive does have inherent authority under article 2 as part of the executive power to maintain secrecy of information related to the national security? mr. leonard? >> absolutely. >> yes. >> yes, but because there's an article one that says congress makes the rules to govern the military armed forces and national security. so it's both. >> well, it's both but i think hamilton in when he -- there was a debate whether you should even have a single executive. they had revolted against george iii. some proposed a council and one of hamilton's main arguments for why you need a single executive was for secrecy particularly
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with regards to national security. there's got to be, is there any place i guess that congress can't go into that or could congress basically legislate as far as it wants in your judgment. >> can ladies and gentlemen late as far as it wants. congress has the power of the purse. that is the key and i think the founders said separate the power of the purse from the power of the sword. that's key. takes pone to run a classification system. >> absolutely. so the congress could abolish the cia if they wanted to. there's no requirement you have that. we do have intelligence agencies. we do that. could congress pass a statute saying declassify as much sensitive suf as we want. would there be any constitutional concern with doing that. >> none and congress has done so with the nazi war krips which exposed the files of nazdies the cia recruit and brought to the united states. it worked. >> in 1998 and 19 are the are the. >> i guess my points is if congress wanted to start declassifying things that are jermaine and ripe right now with
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our government's conducting sensitive operations, you say that would still it be okay even though it could jeopardize lives? >> it would still be okay. my bet is this congress and committee wots act pretty jishlsly on that. you're not julian assange. >> i get it. >> i have a lot of confidence in your judgment. >> well, but there's certain constitutional prerogatives we obviously have the power to legislate, of course, the purse, the executive has certain or the executive power means something. there's certain things so what i'm trying to figure out is, are there certain -- i think we all agree, some of this stuff is ridiculous. and there's and i sentive to just simply cake on more -- some of the stuff isn't even classified that's being protected. at the same time i think it's important to recognize there is a legitimate reason. i think when you overclassify, it actually undermines the core reason of why you want to do it. let me just get you, mr. amey, down on the end. >> i totally agree.
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i believe there's constitutional protection for secrecy but at the same time as tom said in his statement, you have to get to his point three. that is don't trust it. eventually we have to get down to a point whether it's through the challenge process or through briefings that congress gets on questioning what the xav branch is doing. >> you look at some of these things, some of these agencies. the anti-trust division at the department of justice. the bureau of prisons has somebody who's an original classification authority. you know, mr. leonard, how did it get to be that point? is that really necessary in those instances? >> it's an example perhaps of when i was in my position at isu, one of the things i had to do was to deal with requests for agencies to get original classification authority. and quite frankly, one of the
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issues that i had to contend with is it was one of convenience more than anything else. and there were a number of instances where there were agencies or even small activities looking for original classification authority that had to push back because they were looking to really accomplish something that probably can have and should have been accomplished through legislation if there was really a legitimate reason to withhold information from public disclosure. >> how do you analyze because some of this stuff it's just the agencies are embarrassed. they don't want to do it. it's clearly not credible. but sometimes when you're trying to get information from foia or congress, you are diverting the executive from kind of their core mission to actual do good. we're the first ones to criticize the government when they scree up or not competent and so how do you do this in a way that's not going to impose too many costs? for example, if we're going to always review every ten years
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some of the stuff, you know, that is going to create some cost. how would you recommend we strike that balance. >> is that a valid concerns. >> it very much is. one way as mr. blanton referred to was to consolidate authority and responsibility and not spread it so far and wide want government and to give -- i'll give you a xerve example. when i was in the department of defense, i could write a memo and ucia information, the cia trusted me to properly class fight information. they didn't want to look at it. if i came back 20 years later and wanted to work at the national declassification center they wouldn't allow me to declassify it because i didn't get a paycheck from cia. that type of redundancy can be beaten out of the system and would result in significant cost savings. >> i yield back. >> thank the gentleman. chair now recognizes miss kelly for five minutes.
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>> thank you, mr. chair. and thank you for holding today's hearing on this important topic. i believe that secrecy is a serious problem that is widespread in the federal government that it goes beyond classified information. for instance, there's a category of pseudoclassification that has exploed ploeded over te last 15 years crawled controlled unclassified information. there may be as many as 100 designations in use but the label sensitive but unclassified is one of the worst offenders. first i want to get a sense of the extent of this problem, the information security oversight office reports how many classifications, decisions maegss make. however, there's not a 0 are cao responding is section how many decisions were made to designate materials as controlled and unclassified information. mr. leonard, you previously served as a direct isu. are agencies required to track how many materials they designate as controlled and
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classified information? >> i'll defer to one of my copanelists because i've been away since they assumed that responsibility and have not followed that closely. >> i would say that there has been significant progress compared to where we were ten years ago. it used to be that anybody could mark any document anything. you could say this is for official use only. this is, an and that would restrict its access. now under the executive order on controlled unclassified information, there is what's called a cui registry. only those markings that have been approved and validated can be used. and there are many things, of course, we want to protect. we want to protect tax returns. we want to protect privacy information. all those kinds of things have been validated. and only those markings that are on the cui registry are supposed to be used. is that system working perfectly? are people bending the rules? i don't know the answer to that
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question. i think it just went into force very recently. and we're still waiting to see how it's working but i think the policy has improved substantially over the past decade. >> would you estimate that more information is designated as cui than is classified? >> i don't know the answer to that. i don't think we know the answer to it. agencies are going to be required to report how much information is marked. they did boil the over 100 categories down to 20. however, there are 80 sub categories and so at that point, you still end up with a real patchwork of designations and markings that can be placed on documentation. the big thing with it also is there's going to be better training. you know, isu is doing a very good job. i have to applaud them. they reached out to our community and worked with us on the rules, as it went through the process. they really did work with the agencies to try to get it. but i don't think they realized how big that this had expanded
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within agencies. there was a lot of foot dragging by federal agencies, as well. so as mr. aftergood said, it was only in effect i think as of mid-november something like that. so that the point, we're going to have to wait and see and full implementation of the cui regulation isn't expected to be completed until 2017, '18, '19. at that point it's going to take a very long time to probably get answers but it needs the proper oversight from this committee. >> you called it a gray area because i was going to ask you what, do you think the potential for abuse is. >> and we've already seen some abuses in my written testimony, i provide two examples. one was an ig report in which there were examples involving tsa. also, the bizarre case of robert maclean in which something was marked sbu, was actually the original cii. at that the standpoint something was marked sbu, i think four years after he released it even though it didn't have marking or
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designation but they retro actively marked that information as sbu. there are problems in the system and it is prone to abuse. the nice thing with the cui rule is that there is a misuse provision. that may it be something that could be borrowed upon that we should look at since it's already in regulation and also the challenge procedure but again, challenges go back to the agency. and then i think you have a right to dispute resolution. so it's a little murky due to the fact you're in essence going back to the fox guarding the hen house that may have originally marked. there are concerns with that. >> mr. blanton, i want to give au opportunity for comment. >> i agree. >> i nooeld yield back the balance of my time. >> the chair is now going to recognize himself for five minutes. i want to go back to something that came up a little while ago. that is the number of classifications over the last five years, some 400 million and
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yet, only a little over 2300 in the same five-year period have been challenged. and those numbers it can be debated a little bit here and there. whatever it is, 2300 out of 400 million is virtually no challenges whatsoever. and just real quickly, just from a sentence or two, why so few challenges? mr. leonard, i'll start with you. >> mostly one of culture. you know it, when i was in the pentagon, when i had reports in my inbox, if i had an unclassified report and top secret report, which one would i read first? the top secret one. even though it the unclassified may be more substantive. people get inured to it and just expect nothing else. >> mrs. aftergood. >> in many cases, employees are not aware of the challenge provision that enables them to make this challenge. and that's one simple step that can be take it on say look, as
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soon as you siren nondisclosure agreement, you also sign i'm aware that i can challenge a classification mark that i go believe is improper. i would also mention that i think your hundreds of millions figure is including original and derivative classifications. the number of original classifications or entirely new secrets has been on a steady downward trajectory. >> i don't want to get into the number right now. mr. blanton, why so few challenges? >> it's easier just to classify. and much classification just occurs reflexively. most of those derivative classifications is just keep it going because there's not a thought process on the front end of the first decision. what's cost benefit, what's the real risk, what's the vulnerability. what's that. you got to educate them an the nondisclosure agreement point but i would argue. >> just quickly, it could be
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career suicide. at this point, we have insider threat investigations that could take place and also whistle blower retaliations. a lot of times it's easier to go along with the process. >> it's not a matter of red tape perhaps poor advertisement. people don't know the perhaps a culture that or whatever. but red tape is not the problem. is that correct, all of you would agree with that? >> absolutely. again, a lack of accountability is key, too. >> okay. now, when it comes to obviously when know there's been a lot of threats to our country and i'm concerned about the lack of information sharing winning our federal government. how serious of a problem is this to each of you? >> i think it was ten around the time of 9/11. it's five now.
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in other words, there's been significant progress. >> the rest of you, mr. leonard? >> i would tend 0 agree but my sense is that there's also been a roll back with respect to some of you know the recent rather significant wholesale compromises that have occurred, as well, too. >> mr. aftergood, how serious of a problem? >> it's a serious challenge. you know, it's when you classify you restrict dissemination. so they're the flipside of each other. it's an ongoing problem. >> mr. amey? >> agreed. >> so across account board we still have a serious problem. there may be some improvements but we still have a serious problem with sharing information even when potential threats are hanging in the balance of our country. in the mix of all of that, also it came up earlier is the ability of congress to do our job. how serious is the issue or is
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it at all an issue where agencies are overclassifying to either complicate or obstruct congressional oversight? >> i'd like to hear from each of you quickly. >> honestly, you're probably in a better position to answer that. i think it's the exception, not the rule. >> okay. i think it varies by agency and i think the intelligence community has the in the sense the worst cultural problem. you got to go into that skiff. you can't bring out notes. you can't have staff. how are you going to have a serious consideration of real oversight over some of the most important and sensitive and deadly operations of our entire government. >> real quickly. >> inevitably occurs whether intention flal or not and again the lack of accountability. mikes it ripe for abuse. >> it's why in any oversight or new commission that is going to be paneled here to take a look at classification and the status
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and secrecy issues is why you have to get out of just the check the box kind of audit of are people following procedures but take a look at somespection where challenges have been raised and why those things were allowed to be overclassified. >> when we do get stuff, it's so redacted it's virtually worthless much of the time. i want to thank the panelists. my time has expired. the chair will now recognize miss maloney for five minutes. >> thank you, mr. chairman and ranking member. mr. blanton, earlier you mentioned the nazi war crimes disclosure act. that happened to have been a bill that i authored and it took about four years to pass it because the cia was objecting. it open up the files of nazi germany and japan 50 years after the war. now, every other country had open their files but we were refusing to. and it took congress to pass a bill to open up these files. it's been turned into books. it's been turned into all kinds
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of helpful information that has helped our defense strategies and how to operate in an environment as they did. but i want to ask you about the another wave classifying which is retro actively classifying. and i join you in saying there was no reason why we shouldn't have declassified that information. but on september 8th of this year, state department undersecretary for management patrick kennedy testified before this committee about a unique process in the state department used to retro actively classify 2,000 of secretary clinton's e-mails that she turned over to the state department. in other words, they were not classified at the time they were sent or received by her. but then they were reclassified after the fact by staff and the department of the foia office.
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and patrick kennedy testified that 1,400 of these documents or 70% were retro actively classified because they contained what is known as foreign government information. so my question is, it seems to me that this is a confusing process. foreign government information is not treated like classified information. until it's reviewed for public release. and then all of a sudden, it's classified. seems to me we should have one standard. why have one retro actively? it makes no sense. how are state department employees supposed to know when to treat information as classified and when not to if the designation might change without warning? >> i read mr. kennedy's testimony with great interest because he asked this committees to create an exemption under the freedom of information act for foreign government information which is a terrible idea.
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one, it puts tajikistan standards into our freedom of information law. no thank you. lowest secrecy abroad. second reen is if there's harm from release of that foreign government information, it's protected already under your executive order. you can classify it. the third reason is, that's the easy way out. instead of our diplomats actually thinking about how you protect stuff that actually would get us into trouble, they don't want to think about it. i remind you of the weatherhead case when the supreme court over foreign government information got mooted out. turned out the document at issue had already been handed over to the plaintiff and the government had no idea. and it wasn't going to damage our relationship with great britain which is where the document came from. so skepticism is in order. >> well, i agree with you. and i truly understand the need to protect truly sensitive diplomatic discussions from public release. but using the classification label to do that makes the classification system even more
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confusing. and i would argue less effective. and we need to find a better solution so with that statement, i'd just like to ask all other panelists in my remaining time, do you have any recommendations of how to improve this process? and we could start with you, mr. leonard, and just go right down the line. >> the consistent theme this morning and i agree with it whole heartedly is -- is providing legislative backing to the very system. in order to ensure uniformity, consistency, and most of all, accountability. and also for to enable to facilitate the congress to be able to fulfill their article one constitutional authorities, as well. >> the government requires a degree of flexibility. and so i would be cautious about
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you know, strict provisions that remove such flexibility. information that is provided in confidence needs to be protected somehow. if one wants to maintain that working relationship. whether that's classification seems like a heavy handed way to do it. but if. the alternative is a blanket foia exemption, that might not be better. i don't have a good solution for you offhand. >> when it comes to retro active classification, we need to a study. i'm not aware of anything in-depth in taking a look at the effectives. so i think that would be in offered. >> the fundamental phenomenon on retroactive is being driven by agencies like what mr. leonard said. cia asserting control and no longer allowing the zait state department to declassify their
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own information. >> the chair now recognize mrs. massey for five minutes. >> i'm so glad we're having this hearing today. i've been looking for the opportunity to talk about something that's very important to me. about and i'll be very careful not to disclose anything that's classified. about a month ago, i went back down to one of those skiffs that mr. blanton was talking about. can't take notes out. and what i did is i reread the 28 pages. but i brought the redacted version with me. so that i could see in what manner it was redacted. by the way, i'm going to ask you guys a question later so you can get ready with an answer. but one of the things that i would think would help is to know the reason for the redaction. there's certain reasons that might be legitimate and maybe a law that says when you redact large swathes or even small portions, that you have to give the reason. if the reason is to avoid embarrassment or to protect a
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source or to protect somebody who may not be guilty, their public reputation, just disclose it and then the crime or the infraction could be that you lied about the reason. because that's what i want to get to with these 28 pages and the reason for those redactions. and i think i can disclose my perceived reason for some of these redactions without dischlo closing anything classified. 20% of the redactions i would said were to protect specific and confidential sources. i would say another 20% were to withhold the names of individuals whose reputations would be irrevbly ruined whether they were guilty or not. but 60% of those redactions fall into a very troubling category for me. they change the very nature of the document and the way it's perceive by the public and the impact that it should have had. for instance, and those are some of those are probably to prevent embarrassment. but i feel like after reading
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that 10, 20, 40 years from now when it's all released, this is going to be a textbook case of how the government joef classify something in an effort to control the narrative. >> before these pages came out, there was as op-ed in the "usa today" by two of the chairman on the commission that said these are raw unvetted sources. right? so the redactions in my opinion were made to support that presumption that these were raw unvetted sources because if you remove the redactions you would say no, those might be credible sources. in fact. and they might in fact be vetted. so that's my concern is that you know, 20 years from now, we'll look back at there. you'll see the key words and acronyms and sentences were remove. and with the effect, with the effect of diminishing the impression that you get from reading the unredacted pages
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which is that saudi arabia and i can say that name now because it's in the redacted pages, has some kind of civil liability or criminal culpability either not because of their citizens but because of their government. acted either in i would say acts of omission or comission. either one makes them somewhat culpab culpable. i'm afraid that has been diminished by those redactions and it's beenover classified. this is a prime example. so one of the questions i want to ask is, do you think it's a good idea if we required them to give the reason for the redaction. >> absolutely, sir. the order does require original classifiers to be able to identify and describe the damage to national security. but to my formal statement, i attached an actual e-mail that had been used as count one for a
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felony indictment of mr. drake who was eventually not prosecuted. but the government claimed it was classified. and in preparing for the trial, the nsa was required to state specifically why they considered that e-mail to be classified. their explanation looked entirely rationale when you read it. but if you compared what they said to the actual document, it was factually incorrect. >> so that he supports the notion that they should be required to disclose. >> absolutely. >> there should be some punitive ramification for misis leading about the reason. mr. aftergood? >> i would like it to be to make the point that the classification system is permissive. it says that information may be classified if it meets certain conditions. and what that means is that the decision to classify is actually a subjective one. somebody thinks that
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classification is the right move. and because it's subjective, you or i may disagree and say you know, that's a mistake. you're wrong. so providing the reason i think would be helpful but it wouldn't necessarily resolve the disagreement. i just disagree with that reason. instead, i would suggest that in cases of significant interests like the 28 pages like many other cases, there needs to be a procedure where you take the decision away from the original classifier, don't try to make the original classifier admit he was wrong. take the decision away, take it to a third party. there's a public interesting declassification board. there may need to be a new body and say, does this make sense. i want you to evaluate it as a third party and comeback back to us with a recommendation. >> mr. chairman, i appeal to let the other two answer the question. >> just very briefly. exactly this mechanism exists for mandatory review requests this interagency security classification appeals panel and it's you'lled in favor of
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openness over 70% of the time. just a third time. the simple maneuver of taking the document away from the original agency and putting it in a panel that includes account original agency, you gets a completely different result. >> mr. amey. >> this is also a process with the fleex information act. there is a process there where just only a few years ago, did they add where they had to list the reasons. in the old days we used to get a letter back with tons of blackens out markings. in the introthey would say we redacted things for b, 3, 4, 5, 6, and 7 and you in to guess what is applies. now they're required to go through documents subject to the freedom of information act and list right next to each redaction what the redaction what exemption was being cited to justify the reason for that and also then you also have an administrative appeal that we hope we ealways hope it goes to a different entity inside of the department rather than the person that made that marking and now there's also a process through isu to challenge those
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determinations and go to an ash braigstration. it's funny we have a better procedure for that freedom of information act process than the classification process. >> i've seen the documents with the markings. they classify the stuff they even send to us. they try to not even disclose. but i haven't seen that on the 28 pages. i've just seen op-eds that say there's nothing to see here. by the way, it was released the day before trump named his vice president. which is another thing but at least it was released in part. thank you. >> thank the gentleman. the chair now recognizes mr. connolly for five minutes. >> thank you, mr. chairman and thank you all for participating. i guess i'd like to explore a little bit what happens when two agencies disagree about something being classified at all? and there is -- this is not a hypothetical. in a recent investigation of
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e-mails, we had multiple examples where the state department said one thing. and the intelligence community said another. quite, i think, quite striking. a 2011 e-mail sent by the state department employee about the late ambassador chris stevens of libya, was marked clearly sensitive but unclassified. the undersecretary for management, mr. patrick kennedy, confirmed in testimony before the committee that the state department considered the e-mail unclassified. and then anyone reading the e-mail would assume it was not classified. but after the e-mail was sent, the intelligence community, nonetheless, claimed it was classified. so in september of last year, the state department sent a letter to the senator corker, the chairman of the senate
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foreign relations committee explaining the committee was wrong. the letter from the state department stated that the suggestion that the e-mails should have been treated as classified was, and i quote, surprising. and in the department's view, incorrect. unquote. so what's a poor boy to do? is it classified? or isn't it? >> as has been mentioned, sir, there are appeals processes in the system, but they're admittedly rather cumbersome and time consuming. tom blanton referred to the interagency classification appeals panel. i used to serve as executive director for that. interestingly enough, last year, for the last full year of numbers available, for appeals that came to that panel, which consists of executive branch representative from various agencies. 95% of the time, the
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determination made by the agency that owned the information was overridden, at least in part or in whole. 95% of the time, since 1995. >> but in this case, mr mr. leonard, the originating agency didn't want it to be classified. >> i think the short answer to your question is that each agency has classification authority over its own information. and in the dispute you're referring to, i think the intelligence community considered that the information at issue was its information even though it was in the state department documents. >> and the state department -- >> said no it isn't. >> the state department took direct issue with that, saying we understand that's what you think but that's not how we got the information. >> yeah. >> we could even add another layer. let's hypothetically say we invite the fbi, a nonpolitical organization, to come and look to see if there were violations
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of our secrecy laws. well, how is it supposed to determine whether a violation occurred when the two major agencies or entities looking at classification have different views about the nature of the document, the sourcing of the document, and what it should be classified as? >> part of the problem for the federal bureau of investigation is it's part of the intelligence community, so it leans one way on the question. the real answer to your question, is it classified or unclassified, the answer is both. that's the reality of our classification system. i showed you documents here that are both classified and unclassified, simultaneously because different people or different agencies rer sometimes the same reviewer came to a different conclusion. >> i know, but there's a certain cafk cafcaw esque quality to it. i was a senator on the foreign relations committee, and we were
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classi careful about classified material and how it was stored and make sure it's never on your desk, as are executive branch employees. if i have one branch saying that, give it to your grandmother, it's unclassified. the other is saying don't you dare. it's classified. what's my liability as an employee? i'm trying to be diligent. what is it? and my exposing myself by leaving it on my desk? for example. >> the executive order on classification includes provisions for resolving disputes about implementation of the order. ultimately, those disputes can be directed to the attorney general. and you know -- >> but that's not how it works practically. >> it's not. >> listen, i was in the private sector and i was the head of all of this for a private sector entity. we went around, checking to make sure nobody was sloppy. and we're not going to go to the attorney general. you have a ding on your mark
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because i saw that document on your desk. well, in good faith, you're counting on the state department judgment that it was not classified. it was no issue. and i'm deciding, as the security chief, that i don't care. the intelligence community is what i listen to asand they sayt is. it puts people at risk, and frankly, i'm glad it can could be arbitrated at some point and i'm glad the attorney general can ultimately adjudicate, but we're talking about thousands of documents, thousands of judgment calls, i think you mentioned it was subjective. but disputes between agencies are a real dilemma for people trying in good faith to comply with the law. >> you are absolutely correct. and the arbitration is really a technicality. the reality is that these kinds of disputes drive the issue to the lowest common denominator. they result when there's doubt. they end up adopting the view
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that is classified. >> thank you. and the executive order says when there's doubt, it should not be classified. exactly the opposite happens. my answer to your question, send it to your grandmother. i have an opinion from mr. leonard when he was head of the information security oversight office. he said if the national security archive got a version of the document under legal authority, declassified with somebody with the power to do that, you can take it to the bank. you can keep it on your website, even if somebody else at the energy department or defense source says that's classified. wrong, sent it to your grandmother. >> thank the gentleman. now recognize mr. grothman for five minutes. >> sure. first question i have, and this is really for anybody who wants to answer it, in the stuff we have here, we're told the government spends $16 billion on classification activities. and $100 billion over ten years. which is a stunning amount of money.
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if it's $100 billion over ten years it must be going up like a rocket. i assume it means $5 million ten years ago and $16 million today. does anyone care to comment on if that's a good investment of funds and how do you spend that much money? it seems like a phenomenal amount of money. think it's accurate? >> that's a difficult thing to evaluate. lets put it this way, i spend many a year in the defense department. and i had to deal with the consequences of major failures, major compromises, espionage cases and things along those lines. and what the challenge is is that whether rightfully or not, the mentality is zero tolerance for those types of things. how many espionage cases are you willing to endure. how many major releases or
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unauthorized releases are you ready to endure? the mind set is zero tolerance, and as a result, there is -- tends to be a lack of risk management. when ryou have a lack of risk management, you end up paying premium dollars. >> edo you think the numbers ar accurate, though? $16 billion? >> at least accurate from the point of view they show consistent trends from year to year. >> okay. we have a new iso director, mark bradley. does anyone want to give us their opinion? is that a good pick and what goes into making a good pick? >> you know, it was never going to be an openness advocate who led the isoo. but i think he is a good pick because he has a broad
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understanding of the problems of secrecy. he was an aide to the late senator moynahan. and is well attuned to the understanding of the problems that the secrecy system suffers from. as a former intelligence officer and as a doj lawyer, has a degree of credibility with the national security agencies that others might have trouble matching. >> okay. go ahead. >> just the proof's in the pudding. we look forward to meeting with mr. bradley, as soon as he's on the job. you can look at the information security oversight office's previous directors and you can see those folks made some real differences in the security system in a more rational direction. i can hope for that trend to continue. >> certainly, we hope that they reach back out to our community. that's one of the nice things
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with all the gentlemen that mr. blanton just mentioned is they have been very open. there has been a dialogue back and fort, and they know that there is a burden on secrecy but then on openness and have provided the proper way test to that. that has been, i think, beneficial to the system. >> okay. there was an inspector general report in 2013 that said that 33% of the dia employees didn't understand their role. and even more outrageous in that report, they said 80% of the documents reviewed were misclassified. i guess first of all, i should ask how many different classifications are there because it seems like you could almost throw darts at a dart board and do better than that. could you comment on that and as to why that happens. >> comment on it, do you think things are better than three years ago? or maybe it was a flawed report. >> i would suspect it's not a
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flawed report. i think based on my experience for over 40 years, that's rather typical. it's a reflection of as much as we spend tax dollars to investigate people, to establish secure i.t. systems and things along those lines, we do not spend a comparable amount of money in terms of trying to train people in the basics. one of my concerns is that we make -- we make a distinction between original classification and diritative classification. my experience has been when people are deriving it classified information, they're doing it on gut instinct more than anything else. >> any other comments? by the way, unless i'm doing the arithmetic wrong and i did it twice, on the cost of this
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thing, for that, you could hire $2 200,000 people at $80,000 a year. that's how much we're spending. 200,000 people. i understand some of that may make more than $80,000 a year, but my goodness. >> thank the gentleman. the chair recognizes mr. lynch for five minutes. >> thank you, mr. chairman. first of all, i want to thank the panelists for helping us, helping think about this, and how we might approach the problem. i had the pleasure of working with walter jones on the 28 pages. it took us 15 years to get that information out there. which is far too long. it was interesting because as we were asking for disclosure and declassification, the administration was pushing back and saying no, this is too sensitive. we had some of the agencies saying, no, it's methods and
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sources. then finally, when it was eventually declassified, they flipped. they flipped and said, well, there's nothing here. the information is not valid. and they took a totally different tact. we're now struggling with the dea and fbi in regard to classified -- excuse me, confidential informants. so we have learned from the office of the inspector general for the dea that we have 18,000, they have 18,000 confidential informants out there. that are under contract, being paid by the dea. and last year, we spent $237 million paying confidential informants, and congress knows zero about that. they don't know about the crimes they have been committed. they don't know the way they're
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operating. d dea headquarters isn't independently involved. this is all operated at the field level. so that -- and that's just the dea. from our conversations with the fbi, i believe that the numbers are double. probably about 500 million that the fbi is paying to confidential informants. probably double the number, probably in the yara of 30 or 40,000 informants. confidential informants. that's totally out of our purview. i'm wondering, you have all hit on this, you know, with the interagency panel reviewing classifications, is there some way to super charge that, that process? because it is painstakingly slow, and it doesn't work in the timeframe in which the information would be useful to us. mr. leonard, i know that you said that the last time somebody took a good swing at this was during the clinton administration, in your remarks. your earlier comments. is there some way we can get
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this interagency declassification review panel resourced and equipped to give congress, and i have seen -- i have seen my colleagues across the aisle tear their hair out when they couldn't get information. i have been in the same position. is there some way we can formalize this process to get the information in a timely manner? >> one way i would suggest would be to make provisions to allow appeals directly to that panel under certain circumstances. right now, requesters have to go to the individual agency. if they get turned down in whole or part, they have to appeal to the same agency. it's only after that process that they can go to the interagency panel. even that panel then has its own coordination of things which can be problematic, which is easier to address, but the individual
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agency time delays can be problematic. also, for purpose of congress, congress does have the public interest declassification board that they can refer to. and that is another avenue that quite frankly i never believe is utilized enough. but that's another avenue. >> yeah. to expedite it, you know, maybe we just have to figure this out legislatively, to introduce an expedited process where the information we believe is so critical and i guess i'm just thinking, is there a way to get the judiciary involved here so they would review -- i don't want to create a political question that the courts can't rule on, but we're being stonewalled in wide areas of public interest, and i feel like it's hampering congress' ability to do its job. >> one of the things is the
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interagency panel is actually exercising on behalf of the president. it's exercising his article ii authority, and the public interest declassification board, ultimately, they just make recommendations to the president who makes the final decision. >> you have something you want to add? >> yes, sir, you mentioned sources and methods. i think it goes right to your informants problem and one of the big drivers of classification, which is under the current statutory system, anything that is a source of method can be claimed to be withheld, whether or not its release would actually harm a security value or get a source killed. i think congress can take very simple action, both in the intelligence field and the law enforcement field to say sources and methods is not a murka. it should only cover the things that would do damage. get something killed, ruin an investigation. right now, that identifiable harm standard, which is now in the freedom of information statute, it doesn't apply in this informants and sources
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method. it needs to apply. congress has to take that action. >> and that recommendation was in the moynahan commission report, and it hasn't been acted now in almost 20 years. so it may be time for congress to enter that world. >> yeah. i know that attorney general reno issued some guidelines, but they're not being followed. i actually have ledge slalgz. i don't even want to know who the informants are. i just want to know how many are out there, what they're being paid and what crimes if any they have committed while being a part of this government program. we had a difficult time getting that through. but that's all i have, mr. chairman. thank you for your indulgence. i yield back the balance of my time. >> the chair now recognizes mr. duncan for five minutes. >> thank you very much, mr. chairman. first of all, i want to say that i want to go on record as saying i agree with mr. grothman in saying i'm asounded by the amount of spending that's being
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done on this, this $16 billion estimate and over $100 billion in the last ten years. i thnk we lose sight up here of how much a billion dollars actually is. but having said that, i had two other meetings so i unfortunately didn't get to hear your testimony. i apologize if you have gone into some of this earlier. but mr. blanton, in skimming over some of this testimony, i was fascinated by your report about the moynahan commission and that we went through all of this 20 years ago, basically. and also, i think the thing that impressed me the most was, i mean, there seems to be general agreement here today that there is a real problem of overclassification. but i saw where mr. mcdaniel, who was president reagan's
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national security adviser, said that only 10% of what's being classified probably really needed to be classified. is that correct? and why do you think -- you mentioned there that this was a tremendously bipartisan commission, had jesse helms and daniel patrick moynahan. and obviously, you're disappointed that not -- very little was done with that, those recommendations. why do you think that was? and do you think we should take another look at that? what -- just go into that a little bit for me. >> i think in the testimony i quoted mr. mcdaniel, who the moynahan commission quoted and said based on my experience with a few million pages of classified documents, he's right, especially about the historical materials. i think an estimates that's closer to reality for current
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material, the material on terrorists and isis, the best estimate came from the republican head of the 9/11 commission, tom kean. he said 75% of what i read about al qaeda and osama bin laden that was classified shouldn't have been, and we would have been safer as a country. so i think the range is in there. the 75% to 90%. it's a bureaucratic problem. bill reter knows it better than anybody. steve aftergood has been studies it, pogo. every incentive is to classify. there's almost no disincentive. there are no penalties. there has to be, i think, this is the main reason why congress needs to take action. because y'all can change the minds of the bureaucracy and how it actually works. you can change the laws and their hearts and minds will follow. >> i actually believe that the executive branch in general agencies in particular actually want the ambiguity because the ambiguity gives them almost
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unlimited discretion. in dealing with issues. and yes, it results in dumb things, but it's the ultimate trump card to pull out whether you're dealing with the courts, whether you're dealing with congressional oversight or whatever. nobody wants to be the one who compromised truly sensitive information. so there tends to be this over defer ngzal to any assertion, and that's what it is, a simple assertion. it cannot be demonstrated that truly should be classified. >> well, there's so many other things i would like to add or comment on, but mr. amey, i'm assuming -- this committee has requested through the years a great deal of classified material. and do you think that agencies are classifying some material or a lot of material that really doesn't need to be classified? just to void or get around congressional effective congressional oversight? >> yes, but it's hard to know at
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what level. i don't know what i don't know. that's unfortunately when something shows up and it's a blackened out page and marked classified, and then a foia exemption attached to it, it's hard to know. sometimes we get documents released to us, and at that point, you can do the comparison. that can allow you to ask some questions. unfortunately, with the amount of classification we have, its very difficult to put your finger on it, the experts that have taken a look at it, the 75% to 90%, but the culture. i think that's it. even after 9/11 with the 9/11 commission, you have a culture who the default setting is err on the side of caution. >> i have run out of time, but i will say this. we're going to have to, it seems to me, go to much more of a carrot and stick approach on all of this, and incentivize good behavior and penalize bad behavior in this area. and at any rate, thank you very much. >> thank the gentleman.
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the chair now recognizes mr. lujan grisham for five minutes. >> thank you, mr. chairman. and hearing some of the comments at the tail end, you may have to repeat some of that because representing my district and of course new mexico, we're home to world-class national security defense operating labs and related defense. both private and public sector institutions and businesses. and i understand unequivocally the need for being very clear that sensitive, classified security aspects related to information, that we have to be very clear about protecting the integrity of those systems and that information. having this committee work on furthering our effort at transparency and recognizing that across agencies that we don't have an effective handle of that, who's determining and
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what parameters apply and what circumstances before, during, and after information is being shared in a variety of what i would call sort of post and presecurity issues. i also worry about unintended consequences. and being a long-standing bureaucrat, i can argue either way that having ambiguity is -- can be a protective mechanism to not change anything, because you fear those unintended consequences and your own accountability, particularly here where national security is at stake. right right? there's no incentive to be a little bit -- to talk about being less risk averse when we need better transparency in order to inform ourselves in a way that's productive so we can do policy making and you can increase the way in which we address national security issues. both in the congress, both in the bureaucracy, and defense and secure the nation.
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but i also know that it's very frustrating not to have clear direction so that you can make recommendations and include reforms. it's both. and so to provide those leaders with better guidance, help me with some very specific ideas about balancing our efforts, the need for transparency and the clear issue that we have, which is also protecting classified, secure information and the national security interests of this country, because my constituents are going to say, and they're right, be very careful about unintended consequences here. once it's out of the box, it's out. anyone. >> i think one way to understand the issue is that classification is treated as a security function. understandably. the people who are making the classification decisions are asking about the security consequences of disclosure. that's fine. that makes perfect sense.
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the problem is that security is not the only consideration. because classifying has implications from oversight, it has implications for public understanding, for dibloplomacy for technological development. it can have all kinds of implications. to ask the security officer to weigh the public interest or weigh the diplomatic effects is totally unrealistic, i think. what that -- where that takes me is that in areas of significant interest by congress or the public, there needs to be an additional venue where this original security classification decision can be reconsidered in the light of broader issues. what is the public interest? what is the need for oversight? what are the undesirable
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unintended consequences of continuing to classify? don't ask the poor security officer to make this complicated assessment. take it somewhere else and re-evaluate it in light of the big picture. >> anyone else? that is in and of itself sort of a balance and a chance for a re-review as a lawyer and what i would fashion in an appellate aspect. again, making those decisions and then creating the parameters for asking for that guidance is also a set of reforms that can also have unintended consequences. are there specifics in that regard, and the concept, i think, is one i'm very interested in. getting to the concept, are there ways to include the agencies in terms of their recommendations about what those parameters would look like? without having them protected on interest. that's the other problem. in a way that doesn't get you, then, to that appellate level,
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which gets us right back where we started. >> right. we really need more experimentation in this area than what we've had. i think one model is the ice cap model, the interagency panel that's been discussed. there may be others. you would want the voice of security represented, of course, but it would not be the only voice. so you would want diversity and diversity of opinion and perspective brought to bear. you would also want to define who could elevate the issue. a congressional committee, maybe just a member of congress. you know, who else could ask for this kind of review and under what circumstances. these are all questions that could be hashed out. i don't think the answers are obvious. they might not become obvious until they're tried in practice. >> well, mr. chairman, thank you very much for giving me this extra time, and thank you very much for weighing in on what i think is a really critical issue for us to deal with. so thank you.
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>> thank the gentle lady. the chair now recognizes mr. amash for five minutes. >> i yield my time to mr mr. massie. >> i have tons of stuff i want to discuss. we try to get three things in in the last five minutes. the first two fall under the category of there's good news but. okay, there's good news in terms of the intelligence budget, right? because the 9/11 commission recommended that at least the aggregate number be disclosed. so it is disclosed. and the executive branch, actually in this case, does a better job than the legislative branch. they disclose their request for the budget. but the situation we had last week is you had 435 members of congress probably less than 80 knew what was in the budget, but they all voted for it. they can find out what's in it two years from now. like the 2015 number, i can tell you, it's on the website. but we still don't disclose the
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top line number, aggregate number for intelligence appropriations until a year after it's been voted on. so that's the good news is that it's disclosed. the bad news is most of congress is voting on it to see what's in it. they can go down to -- like my colleague and i from michigan did, and see what's in it. that's the good news, but some of this is just lack of attention on our part. another good news but. mr. desantis capably and appropriately pointed out the executive branch has to have secrets to conduct its diplomacy, et cetera, et cetera. then mr. blanton, you talked about how you could use the power of the purse. there is one department that does effectively use the power of the purse for oversight. and that's the intelligence committee. they don't give the intelligence community a tranche of money and say, okay, you have no strings attached and we don't want to know anything until next year.
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they're continuously -- that money is contingent upon certain things and also when certain things happen, they have to be reported back to that committee. the judiciary committee would do well to follow that example. you could -- the judiciary could fence money and say we will give you part of it but you're not getting the rest until we get this answer. so to the theoretical point of can you get this information from the executive branch or can you not based on the constitution and article i versus article ii, the answer is what you provided, mr. blanton. the key is in the power of the purse. and you can always get that information. so that's the good news is that you can get the information and the intel committee does it. the bad news is doj doesn't do it. the other bad news is the intel committee controls this information very tightly and it's hard for a rank and file member to access that. it's basically 20 questions and a skiff. and without staff walking out.
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that's the bad news. now, and if i have time, i'll let you comment on that, but here's the third thing i want to talk about. i think it falls within this committee hearing today. and this question is for mr. aftergood. the federation of american scientists keeps a bootleg copy of all the congressional research service reports. is that correct? >> not all of them. >> well, the ones that you can obtain? >> yes. >> okay. this is -- the congressional research service, for those who don't know about it, is this enormous wonderful resource available to congress, and they have all the historical context for the reasons of things. they prepare these wonderful reports. but they're confidential to congress. and the irony here is i could disclose them to a constituent, but the crs has no clearing-house for this. a greater irony is on a weekend, i go to your website to find out what the congressional research
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service has prepared. how ridiculous is that? so i would like your comment on that, mr. aftergood. >> um, you know, there's been a lot of talk lately about fake news and how it's corrupting our public discourse and so forth. to me, i think of crs reports as kind of the antidote and opposite of fake news. >> we get a lot of fake information in congress from various sources. >> i mean, you know, we all need to be critical consumers. but i think the crs product on the whole are extremely informative. they're balanced. they aim to educate. if you read them, you're going to get smarter than you are. and so i'm not -- you know, i'm not -- >> that's not hard to do for a congressman. >> or for a citizen. i don't have too big a chip on my shoulder about doing this. i'm not -- you know, i would just as soon congress do it the right way. i think you have a product that you can be proud of.
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and you should be making it available to the public. until that happens, i hope to be able to continue doing it through the federation. >> i hope you do, too, because i need access to that on weekends. thank you very much. >> i would only suggest it's the end of the year. you might want to contribute to steve's web page. >> i thank the gentleman, and i also want to extend a sincere thanks to each of our witnesses for appearing before us here today. if there's no further business, without objection, the committee stands adjourned.
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coming up, a ceremony honoring harry reid, having serving for more than a decade as minority and majority leader among those attending the ceremony, vice president joe biden and former senator hillary clinton. that ceremony will get under way at 4:00 p.m. eastern. live coverage here on c-span3. and then tonight, on our companion network, c-span, donald trump who continues his thank you tour of states that he won in november. he will address supporters in des moines, iowa. that will be live at 8:00 p.m. eastern on c-span. sunday on american history tv on c-span3, at 1:00 p.m. eastern, a symposium on world war ii spies and code breakers. the fbi and a nazi spy ring in new york city, and an american family who aids the french resistance in nazi-occupied paris. >> it was a serious decision,
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obviously. she had a husband, and she had a 15-year-old son, philip jackson. by deciding to use that as a place where the resistance could meet and where intelligence was dropped, she was risking not only her life but her husband and her son's life. >> a little after 5:00, in the 1920s, nikola sacco and venzety were tried, convicted and executed for robby in massachusetts despite the lack of evidence. we discuss the controversy surrounding the case inside the supreme court chamber with introductions by ruth bader ginsburg. >> on august 2nd, they were transferred to the death house. the governor, after reading the unanimous committee report, declared that they had had a fair trial. the boston press declared the case closed. >> and at 8:00, on the presidency, historian george
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nash talked about hoover's humanitarian efforts in world war ii. >> hoover, working voluntarily and without pay, became an international hero. the embodiment of a new force in global politics. american benevolence in the form of humanitarian aid programs. >> for a complete american history tv schedule, go to c-span.org. follow the transition of government on c-span, as president-elect donald trump selects his cabinet and the republicans and democrats prepare for the next congress, we'll take you to key events as they happen, without interruption. watch live on c-span. watch on demand at c-span.org or listen on our free c-span radio app. >> the cato institute recently hosted a discussion about the future of freedom of speech and
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freedom of the press. this is 90 minutes. >> hello. good evening, everyone. thanks for coming out to the cato institute in washington, d.c. my name is kat murti. you are at cato digital. an ongoing series on the freedom of speech and freedom of press and what we can do to combat those attacks. our hash tag for tonight is as always cato digital. in the spirit of free exchange,
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and freedom of expression, i encourage you all to use it liberally on twitter and instagram to share your thoughts, reflections, favorite quotes from the panel tonight. those of you who are watching on c-span or one of our online channels can also use it to tweet in questions which i will be looking for on my phone throughout the panel. the freedom of speech and the freedom of press are at the core of a free society. unfortunately, we're increasingly discovering that far too many people might say that they support them but when in actuality they don't support the policies that safeguard any of the above. on the campaign trail we saw both from hillary clinton and donald trump calls to close sections of the internet in order to combat isis and support for flag -- for bans on flag burning, a constitutionally protected right. last week even donald trump
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doubled down on his -- on his dislike of flag burners with an incendiary tweet calling for all americans who would burn the flag to lose their citizenships. he's also called for tougher libel laws that would crack down on media companies that publish embarrassing or unflattering information about individuals and has said that the freedom of the press gets in the way of the war on terror. meanwhile on the campaign trail, we saw students calling the police to report hate speech because of seeing trump 2016 written in chalk on their campuses. we saw employees of facebook petitioning mark zuckerberg to ban donald trump and all of his posts from the platform, and the trump campaign alleged that twitter had blocked much of its advertising on the platform because of idealogical reasons.
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post 2016 election, pundits on both the left and the right blame social media for the increasing polarization of the voting public and both google and facebook have announced initiatives to crack down on fake news on their websites despite controversy over what that fake news actually is. our guests tonight are two stalwarts in the fight for free speech and the freedom of press. and we're very lucky to have them here tonight. flemming rose is the 2016 winner of the milton friedman award for advancing liberty. he's also a scholar here at the cato institute. he is the author of the "tyranny of silence" the first of his three books that is now out in paperback. those of you in the audience will get an opportunity get a copy signed after this presentation. most of you probably know nick gillespie. editor in chief of reason.com.
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and reason tv. you find him online at twitter @nickgillespie. >> my hours are usually between 2:30 and 3:30 in the morning if you're looking for something to do. >> the best time. >> that's right. i want to get that new trump tweet out there, retweet them immediately. >> flemming, your life changed radically on september 19th, 2005. can you tell us why? >> not right away, but september 19th, 2005, was the day that the so-call so-called cartoons of the prophet muhammad were published by the newspaper i worked at back then. nothing happened right away, on the day of the publication. i just received one phone call from a newspaper who had been at the mosque and complained and said he would not sell the
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newspaper anymore. but as the newspaper, you get those calls every now and then. so it took a while until i understood that this may change my life. >> right. and why did you publish those cartoons? >> well, the cartoons didn't come out as blue. they were published as part of a debate about self-sensorship and violence regarding islam in denmark and europe. there were several cases pointing to the issue of self-censorship and intimidation. a dutch filmmaker was being kill in amsterdam in 2004. there was in debate, is there self-censorship or not? if there is self-censorship, is it based in actual fact or just in the imagination of those who censor themselves, and to find
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out, we invited -- i invited cartoonists in denmark to draw the prophet as they see him. but i received cartoons from 25 active members of the association of the danish cartoonists. >> some of those people did express they would want to publish anonymously. >> well, yes. one of the reasons why we published was that it always started with a children's book about the life of the prophet and the illustrator who did those illustrations insisted on an mimty, which is a form of censorship. you do not want to appear under your own name out of fear for the consequences. >> it's the case that mohammed, there was a dominant strain of thought in islam is that you should not figure the prophet, correct? >> sunni islam, but i didn't know that at the time. in fact, if you ask, there was a
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very famous american scholar of islamic art. who unfortunately passed away a few years ago. he said afterwards there is no basis in the koranic text, in the text for the koranical text for banning images of the prophet. and in shia islam, i mean, you have images of the prophet, but recently, that's true, it's been banned, but you have throughout islamic history, you see them where you in fact have a 13th century image of the prophet. so it's not true that, you know, it's -- it's a taboo within islam, but it's true that the depiction of living things is not quite common.
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if you go into a mosque if you go to a church, you would see no images. >> this is a good reason to avoid both, right? keep your weekends free. >> there was a violent reaction after these cartoons came out. multiple embassies around the world were set on fire. i think over 139 people were killed in protests. >> probably more. >> right. yes. do you regret publishing the cartoons? >> no, i don't regret publishing these cartoons. i mean, they were in line with my fundamental approach to journalism. it says that if there is -- if you hear about a story, if you hear about an issue, you want to find out if it's true or not. right? that's what you do as a journalist. we just chose an untraditional way. instead of just asking people, we invited people working with
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images as their medium to show in practice what -- how they view this issue. but of course i don't believe that a cartoon is worth a single human life. >> yeah. >> the challenge for any editor and journalist is what do you do when there are people out there who believe that it's okay to kill because of a cartoon. >> but you yourself were put on al qaeda's hit list, along with salman rushdie, the late editor of "charlie hebdo" and your own newspaper, despite supporting you publicly, did give you very restrictive list of rules on how you were allowed to engage. >> quite late in the game, in 2011. after i published this book in denmark in 2010. it was in a situation of emergency i would say.
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i mean, there were between five and ten foiled attacks or plans to attack the newspaper. so it was a very unusual situation. that's why i accepted, you know, this dictate in 2011. but a year later when i was told this will be in effect as long as you're employed by this company, i was not allowed to speak and write about religious issues. i was not allowed to speak and write about the cartoon crisis. i was not allowed to speak and write about the organization of islamic conference or collaboration, international organization. i said, you know, i disagree strongly and i will take the consequences if i am not able to live with this at some point. >> it was emblematic of the same chilling of speech. >> it was a huge victory for the jihadists.
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i'm not on speaking terms with, you know, colleagues and friends whom i've known for 25 years. the top management at the newspaper, they tried to silence me. in the end i broke with them and i left the newspaper. we don't talk anymore. so i mean, friendships were ruined. fundamental journalistic principles were violated. that's a huge victory for the jihadists veto, as a historian called it a few years ago. >> nick, in 2015 you faced similar pressure to value security over liberty. >> yeah. >> tell us a little bit about that. >> let me just thank you for having me and it's a real honor and a privilege for me to be on a stage with somebody like flemming who is -- and i hope you all appreciate both what he said when he said no cartoon is
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worth a human life. somebody who reads editorial cartoons almost every day and even publishes them on a weekly basis, i agree with him completely and also the principles for which he really made a bold statement is really just fantastic. i would like to give him a round of applause for standing up for that. as kat was saying, i mean, as a bedrock principle of a free society of an open society, of a truly liberal society, of a libertarian society, free speech, free expression, i think free assembly as well, these are all intertwined and they're really at the core. i say that as a bit of a preface to say i feel bad to be on a stage with somebody who is like, i in the name of a foundational civilizational value, i publish a bunch of cartoons and then insane jihadists who pervert the very religion they purport to
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represent, tried to kill me and killed hundreds of people around the globe and caused all kinds of mayhem. my contribution to free speech is much, much smaller. it may be more common for more of you. essentially last year if all of you know or have heard of the silk road website which was a dark web or deep website where people could buy and sell anything they wanted basically using bit coin. they were anonymous users. it was used to traffic in a lot of drugs. the person who is ultimately convicted of founding and running the site, he went on a long trial. he essentially got a life sentence which he's appealing now from a judge in new york. >> with no chance of parole. >> that's right. yeah. he's, you know, he's going to be locked up for the rest of his life almost certainly. he is appealing it. but when the -- he -- when the judge handed down her sentence, katherine forest, the judge in the southern district of the
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federal court of new york, she spent a long time haranguing him about his libertarian beliefs and who did he think he was that people should be able to come and freely trade whatever they wanted in a consensual nature, what kind of bastard are you? i'm exaggerating a little bit. i wrote up a post about the outcome of the trial which i think was wrong and the judge went off on a tangent. she wasn't talking about the law. she was mad that this guy would have done this. and then in response to that a couple of our commenters, we have an unmoderated comment section at reason. it's increasingly rare to have any comments on websites for reasons that i think will become clear over the conversation tonight. but a couple of them made literally six people made comments that were making fun of the judge, a couple made jokes
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that were threats based on "fargo," the movie "fargo." there's a scene where a guy gets fed into a wood chipper. they made references to that. they made references when the revolution comes and they round up judges, they should put one behind another so you save bullets, things like this. we got, a week or so after that, we got a subpoena asking for all of the information that we had on our commenters, which was not all that much because we don't actually -- we ask people if they want to comment, they need to supply a valid e-mail address, and then there's a variety of other information they may or may not give. because the federal prosecutor was -- had standing grand jury that was related to this silk road trial and they said that these were threats against the life of a federal judge, a very serious charge and they wanted
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that and we were faced with the question of whether or not we go public with that subpoena or not. do we tell the people or do we just comply with the subpoena. and we ended up doing based on legal counsel, we let the people who were the subject of the subpoena, the six commenters, we got in touch with them and told them about it. we wanted to find out if they were going to try to quash the subpoena, which was ridiculous on its face. then we got a gag order the day after because our lawyer said to the federal prosecutor who had gotten in touch with us, well, we told the people -- you know, who were named in the subpoena, about this. and we're waiting to see if they're going to quash it. they said you can't do that. you're under a gag order, which means you can't even say to people if they ask you, are you under a gag order, you just have to be like -- you're not allowed to say anything. and the federal prosecutor hadn't issued a silealtaneous
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gag order with the subpoena, so then they issued a gag order, and we were stuck. one of the commenters leaked the subpoena to kim white who is a criminal defense attorney in california. runs a great legal blog. he wrote a story about that and then he called me up for a comment to ask whether or not we were in fact under a gag order. i was like i really have no comment, which is effectively the same as saying yeah, we're under a gag order. >> and so that was a chilling effect on our speech. we ended up protesting. we spent thousands if not tens of thousands of dollars and of man hours dealing with this. and that's, you know, in a way it's interesting you called it the assassins veto. it's certainly that. we had a chilling effect from the federal government essentially saying you have a right to free speech but we're going to make you work for it and pay for it. in a way, plus the chilling
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effect on the commenters. the happy ending in that story was because of what ken white's great coverage, and this just fantastic piece of article, look it up on the blog, we generated a huge amount of media sympathy from different groups because it turns out the federal government has tens of thousands of requests. there's no way of really kind of cataloguing and calculating how many they asked for information from places like youtube, from places like facebook, twitter, you name it, tens of thousands. other press organizations for information on readers and commenters. and often times with the gag order so nobody really knows how many times this is happening and how often. >> and you were in a unique position here. you were the writer of the original piece that the commenters had commented on. but you were also the editor in chief of a very idealogical, libertarian publication. do you think you that could have
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expected another media source to respond in the same way? >> yeah, that's a good question. the way that most media sources, and this goes to it's a more s ideal of free speech and free expression and open an unfettered exchange of ideas. what most sites have done or most publications, many publications have done, there's two responses generally, one is that they will use a service like disqus which is a commenting plug in for a variety of website content management systems so that the comments are actually technically published by a wholly different organization than the site that they're on. and it gives you a certain amount of distance from that. or you just get rid of comments all together which is more and more common where people just don't have comment section anymore. and, you know, the internet and
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the worldwide web, which i guess is just called the web now, excuse me for being old, but in the early '90s one of the utopian dreams -- and it's delivered on a lot of this, not completely -- was, wow, we could have real conversations. that it wasn't just waiting a couple of weeks for "the new york times" to publish a 100-word letter from somebody bitching and moaning about something but you could have real discussions and flourishing of public speak could be everywhere and always had more room for comments to things where things have been shut down in many significant ways. >> nick, you defended essentially the freedom of speech of people who were making death threats, although there is a lot of question over how serious those were and flemming, you actually received death threats for supporting freedom of speech. what is the difference there? should the people making those death threats get freedom of speech as well?
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>> i think if you look at the american situation and the first amendme amendment, death threats in order to be illegal needs to be followed by more or less immediate action. >> uh-huh. >> in europe it's a little bit more complicated. in europe people may be convicted for a speech like this, but i'm more in favor of the american approach. that there needs to be a clear and present danger. >> right. >> even though you may not think it's funny for the judge, but, i mean -- >> someone making fargo jokes is a bit different from someone who has just murdered someone for saying something. >> of course. >> and the ultimate -- i mean, you referenced the murder of theo van gogh in the streets of amsterdam, one of the great historic citadels of tolerance and plurism, he was literally -- he had a note stabbed into his body saying i and lee who had
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written the scenario for the movie that he was -- that he had directed for which he was killed, that's a wildly different situation than what reason face where there is a concept of true threat where if you just say, you know, you're blowing off steam and you're saying, oh, i could kill this person or i want to kill this person, it's not a true threat because there isn't any proximity, there isn't necessarily any real follow through, et cetera. one of the things that i was hilarious is that in the federal prosecutor's subpoena -- again, this was to a grand jury so we had no way of stopping this because grand juries are given vast latitude to just get whatever information they want, there's very few limits on that, which itself is a problem, but is somewhat separate from the speech issue, but they were saying, you know, these people are making credible threats, real threats, true threats against a federal judge and can you get back to us within -- it was something like 72 hours or a week with the information about
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them. so it's like they were so terrified that these people were -- these commenters were going to come and kill a federal judge that they gave us a week to comply to get the information. much of which was available in like -- like in our profiles it would have -- one of the people had a google plus page listed as their contact and so the federal government was so upset by this, but they didn't know where to turn so they asked us to get the information in a week. it's ridiculous on its face. that's a real distinction. if it's a clear and present danger, if it's a call to immediate serious action it's one thing, but otherwise, come on, speech is speech. >> right. so on that note to get the elephant out of the room is flag burning free speech? >> i think so. >> unless a person is wearing it and then it's an assault. >> so as journalists do you think the president trump -- >> i'm sorry, if i can also just -- i don't know if there are any trump supporters out
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there. the really novel thing about the trump comments on that wasn't simply a flag burning because hillary clinton is against flag burning. all of these idiots -- large majority of people in congress i think are against flag burning. he actually said that you should not only go to jail, but you should be stripped of your citizenship which is truly kind of stunning and that is a particularly interesting kind of meme or idea that goes through a lot of trump talk of like some people are citizens, some people can't be citizens or you could be a citizen but we're going to get rid of you and as a matter of law there's no possibility of that happening. >> of doing it, right. >> it's disturbing to see constantly reach in that direction. >> so as journalists do you think that president trump will be a credible threat to free speech? why or i can't not? >> we will have to wait and see. i mean, i'm not an expert on u.s. elections. i wrote a book while the election was going on so i
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didn't follow it so closely, but i noticed the other way that floyd abrams a great first amendment lawyer in the u.s. said to the hollywood reporter that donald trump represents the greatest threat to the first amendment since the alien addition act from 1798 and he contemplated that -- that u.s. media organizations may consider suing trump for libel to fight him, you know, with his own weapons if he -- >> the weapon he wants to weaponize more apparently. >> to teach him a lesson, but i think it was more like a creative input. he just said we have to think about how to manage this situation. i mean, i think the -- what you said about citizenship, that on
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the one hand trump is politically incorrect, yeah, he says things that usually would be socially marginalized and that's maybe one of the reasons why he has so much support, but at the same time he's very thin skinned when people criticize him. i see him as a populist and we also have these populists in europe and i think a key notion of populism is this lack of pluralism. that we represent the people, we are against the elites or the foreigners or those who do not belong and i think that is a key challenge in this current debate about free speech, be it donald trump, be it islamists, be it rising populists in europe, be it left wing do gooders, it's all about the lack of the ability to manage diversity or
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manage or cope with ideas and speech that they dislike. and that has been reinforced by the digital revolution, by migration because every society is getting more and more diversion in terms of ethnicity, religion and culture and i think that is -- that is a staying challenge independent of trump or not. and it's a big issue in europe and i think it will also be a big issue here and in other parts of the world as we move forward because the world is not going to grow less diverse. we have more and more people living in cities and cities -- you know, the difference between cities and country sides is that cities are heterogenous they are not homogeneous in any way so you have virtual and physical neighbors that you -- that you didn't use to live next door to and -- and it raises what i
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believe is the key question here, the question of tolerance and the distorted understanding of tolerance that is being moved around. to me tolerance is basically a judicial political frame for managing disagreement. that you don't try to ban and you don't try to use violence to silence things that you hate. to many people it means either, you know, turn the other cheek, that you are intolerant if you say something outrageous. so in order to manage this new diversity we have to get back and reinvent the notion of tolerance in -- >> what it means to be tolerant. >> yeah, in a diverse society because trump has trouble managing diversity, angela merkel has trouble managing diversity, political parties have trouble, on college
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campuses they are not able to manage diversity. so we have to get back to these key building breaks of enlightenment to be able to find a way to way to live in peace together in in new era without compromising fundamental liberties like freedom of expression and freedom of religion and freedom of assembly. >> freedom of movement. >> yes. >> one of the things you touched on s you know, you are talking about an enlightenment ideal which i think needs to be redefended, if that's a word, because the enlightenment has become a dirty word in most academic circles, the enlightenment is the dark enlightenment, you know, the enlightenment -- if you follow the frankfurt school or other scholars it ends in the mass murder in auschwitz, it's not about factory farming, it's about factory murder. we need to defend the
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enlightenment and that idea of cosmopolitanism, of globalism which trump -- trump says and the people who support him, hillary was a globalist. obama is a globalist. somebody who deported more americans -- not more americans, but more illegal immigrants than anybody else is a globalist somehow. i think we need to take a plan for globalization in a positive way and make it a positive ideal and it's based on this idea of freedom of movement, freedom of speech, freedom of conscious and this is where a dynamic economy, a dynamic world, a fairer world, a more innovative world, a better world, a more prosperous world comes from. it is better that we trade with china than that we fight with china or isolate china. it is better that we trade with mexico and that the nafta agreement created a free trade zone in north america where there are effectively no tariffs anywhere. that's a good thing and we need to go back and kind of defend that. to go to the question of trump
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and free speech really quickly, he has his own idea. i mean, if he could he would shut down everybody and every news organization and every, you know, random person. i mean, you know, and i do recommend you follow his twitter account. at one point he -- he said he was in the green room at fox news, juan williams who works -- he is like one of the liberals at fox news took some selfies with him and he tweeted something along the lines of like juan williams took selfies with me then slammed me on tv. what a bad man. and this is a guy who is like going to be the president of the united states. and he's that pissy about every interaction. we need to hold him accountable and make fun of him on that. if he had his way he would be terrible on free speech. >> cartoons. >> let's use cartoons. we will have donald trump with a bomb in his hair rather than in his beard, right? but he also as a matter of policy, for instance, donald
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trump -- and this just shows how like what politicians want -- remember it's all unintended consequences, we believe we know the law of unintended consequences it's true for politicians as well. he might want to shut down "the new york times" or shut down jeff bezos who owns the "washington post" but he will also appoint an fcc that gets rid of stupid net neutrality laws that hillary clinton was in favor of that would change the underlying framework of how internet speech and internet expression and internet data gets sent around. so on a certain level he might -- he might be awful in everything he says and yet he might end up having a more positive affect in opening up the very framework by which we are more free to speak in more different context that we might not even be able to imagine yet. >> just one follow-up on diversity. i mean, i basically agree with you, but i think we need to acknowledge that diversity is
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very difficult and can be very painful and for many years it's because it's been very popular to celebrate diversity, it's kind of not correct to acknowledge that it is -- it's not easy. it's painful. it's difficult. it creates conflict. you have confrontations and i think -- i think one shouldn't, you know, celebrate diversity as a virtual by itself, it's just a fact that you have to cope with and it's not that the more diverse a society is the better it is or the more homogeneous it is the worse it is. there are two different types of sizes and we have to be honest that it's not easy and we see that all around the world right now. >> i want to go off of this idea of diversity. we were discussing a little bit earlier before -- before we
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started this discussion here the early internet or the early social internet when people first started engaging and gave people an opportunity to find so many more subcultures and groups and ideas that they didn't really have access to previously. so in those ways it had become much more diverse, it had this diversifying impact where previously we didn't have that, but now post 2016 election in particular we are having a lot of people blaming the polarization of the voting public on the fact that we have things like algorithms that serve us the content that it knows that we're going to like, the fact that people push to unfollow -- unfollow anyone who says things that they think are uncomfortable, unfriend them, if you say something a certain way i'm not going to -- i'm going to block you, i'm going to do that and then they turn around and say how could donald trump have won, no one i know supports him, right? so what's the play here? is it really -- i mean, are the
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people the problem? do the people need to be -- >> i think the children are the problem. you know, we keep looking to them as a solution but they are really the problem. they are the ones -- that's how we know the schools are no good, right, because they are not learning anything. it's their problem. i would argue -- i agree that there is no question that social media and new media, however we want to talk about it, the internet is being blamed for polarization. the fact of the matter is -- and i really am enamored of morris fiorina who is associated with the hoover institute who has talked about this going back 15 or 20 years about polarization in american politics and the real problem isn't that americans aren't polarized, you can find basically 60% of americans easily think that illegal immigrants should be given a pathway to legal sfwlags or citizenship. 60% or more of americans think that abortion laws should kind
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of stay where they are now and have been since roe versus wade. 60% believe pot should be legalized. there's massive majorities. nobody cares about gay marriage anymore. this used to be a hot button issue and it's like it's won. there's massive majorities on many issues that supposedly divide us. the real problem is that in politics, in partisan politics, we can't express those opinions because the nominating processes by which candidates are selected are governed by extremists in both the republican and democratic party. you can see this where there are no centrist republicans anymore. there are no centrist democrats, they are all extreme. it predates the rise of the web and it's the political system that's the problem and it also helps explain -- i'm bullish on this election because again and again and again -- and this is something matt welch my colleague and i talked about in our book "the declaration of
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independence" going back to 1970 fewer and fewer people identify as republican and democrat, fewer and fewer identify as liberal and conservative, they're moderates or libertarians, david bose did a great post using gallop survey to show that libertarians are the single largest ideological block defined as socially liberal and fiscally conservative and we can pick bones with that type of stuff but it's basically the political system we have does not allow us to express our agreement on many important issues and we are vacating that political system. fewer people want to be republican, fewer people want to be democratic. >> we saw that with this election. >> it's a great outcome that one horrible candidate who is historically disliked won the electoral college, the other historically disapproved candidate won the popular vote, neither of them could get 50%. they have a total monopoly on
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police cal discourse and they suck and we know it and we're leaving that behind. we're migrating somewhere else and hopefully it's a world beyond politics. this is progress that we have an election where nobody won clearly and nobody got 50% and i'm hoping in 2020 especially if joe biden runs, i mean, we might be seeing major parties like polling in the single digits. if somebody knows where gary johnson is hiding out i think the third time might be the charm for him, it's like reagan. >> yeah, on social media and what you said about -- >> diversity of ideas. >> yeah, exactly. i think that is a huge challenge. because we have this inert tendency to look for material
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and stuff with which we agree and that does not challenge us. so you have these echo chambers and communities that don't know what is going on in other communities and i think -- i don't think that polarization even by itself is a problem. i mean, sometimes it's great to have polarization and good things come out of it because you have a heated argument, but i think -- i think in terms of knowledge production, i think it's very -- it's very beneficial to be exposed to point of views with which you disagree or even hate or dislike. and when it comes to moderation, i mean, you have these social psychology tests that shows that if you put people of the same opinion in a room and they talk about, you know, the issue on which they agree when they come out they will be more radicals and the same with people of the
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opposite point of view but if you put people from both groups in the same room they will tend to moderate opinions and also for knowledge production i just think it's healthy to talk to people with whom you disagree in order to figure out, you know, what you disagree about and you can refine your arguments and not just talk to people with whom you agree on everything. and i think -- i think social media reinforces unfortunately that -- that bad trend. >> i'm not fully convinced that we're more polarized than ever in our daily lives or that we're sorting as much as some people say so that, you know, that everybody just lives around people who are exactly like them or think like them, but taking -- there's no question that that kind of self-selection or confirmation bias is problematic. to go back to the enlightenment question -- and i also love the phrase knowledge production. that's -- it's really key.
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that's what universities, i think, should be for. they are not for teaching students, they're for producing knowledge and debate and synthesis and the next step forward i think societies that produce a lot of knowledge do better. going back to the enlightenment question, you know, what are the institutions that we need -- do you think that we need to build up so that we take that seriously and that we're teaching our children not that, okay, look, mommy and daddy have all the answers and we have to force it down the throat of the -- you know, the people that don't agree with us, but how do we -- what are the institutions that would build up that kind of enlightenment belief in tolerance, in pluralism, in conflict that is resolved peacefully or intellectually or even emotionally as opposed to violently. >> i think schools and families where you bring up kids and you -- you teach them the benefit of being exposed to things that makes you
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uncomfortable because instinctive reaction would be i don't like this and, i mean, i have a grandson who is very ambivalent about playing soccer and i take him to soccer every saturday morning and -- >> so you want him to be a soccer star but you never were able to so now -- >> that's true. >> -- pushing it to. >> yes. so he's ambivalent but i take him every time and i can see that even though he is ambivalent, you know, after a long period of time he starts to enjoy it and so i think we have to teach our kids had knowledge production process and tolerance that it's okay that you don't like what, you know, the other guy says, but it may be beneficial to you to listen and
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engage in a conversation and -- but the trend is that we have to protect our children because there are so many bad things out there. so we don't expose them to things that makes them uncomfortable. >> including in the schools. >> and this brings me back to the concept of tolerance. so you have to -- you have to teach tolerance this way, that it's good to be exposed to things that you dislike. >> kind of on the same track of exposing people to ideas, prior to the election here in the u.s. there was a big controversy that had conservatives up in arms saying that facebook was sense ring them based upon the trending news stories mechanism and how stories were being selected for that. now, after the election we are hearing a lot about fake news and why isn't facebook doing more in order to figure -- in
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order to make sure that certain stories are being told and other ones aren't. is this a partisan divide that we're seeing or is there something else at play here? >> well, i think in the fake news story, you know, the one thing that clinton supporters -- not even necessarily, i think, hillary clinton supporters, but people who preferred her to win over donald trump and particularly the more dyed in the wool democratic party members they are i think the less they're likely to say, okay, she lost not because of voter suppression, she lost because -- you know, they don't want to blame her for the loss because that doesn't compute to them, but she just did not bring out the people she needed to bring out to vote. her -- people were talking about she was going to have a more diverse coalition of different interest groups than obama. she didn't. as a matter of fact, she ended up basically polling, you know, what polls expected her to, she
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was within a couple points of beating trump but she didn't pull people out. and it was her fault that she lost, but people are searching -- her partizans are searching for reasons to explain her inexplicable loss which is actually kind of understandable when you look at the number of votes that were cast and the lack of enthusiasm that had dogged her through the entire process to a point where bernie sanders who is a joke, i mean, he is a joke as a candidate, and he had no good ideas, i mean, this is a guy who is the final season -- >> the danish model. >> there you go. >> don't offend the danish. >> the bonus season of "that '70s show", this is a guy who hadn't had a new thought in 40 years was able to take her pretty close to the wire. it was her fault. and trump barely won. i'm not saying it's not a legitimate win, it's a totally legitimate win, but the fact just because a lot of his people are like foaming at the mouth and if you ever go on twitter
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and make a joke -- you can't even make a joke at democrats' expense that makes -- with donald trump in it because the other day donald trump was in cincinnati and during all the cable shows were showing his -- you know, the people in the stadium at and it was a totally white audience and i tweeted i haven't seen an audience this white since prairie home companion came to cincinnati. so it was a joke at the expense of garrison keillor and the white mob at npr and i'm still getting attacks from trumpites who are like why are you bringing race into everything? they are a thin skinned bunch. there aren't that many of them actually. enough to get him in the white house, good for them. wonderful. we can work with that as libertarians because we're coming at -- we have a future-oriented philosophy, we're interested in technology, we're interested in true diversity, diversity of different people's, of different
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foods, of different genders, of different ideas. yeah, we're the future. this is going to be a very good time for us as long as we don't get caught up in trying to be, you know, republicans or democrats in any kind of dunneder headed way. >> one additional point. you know, every time you have a discussion about fairness of fake reporting or impolite speech or whatever it is, the usual suspect is always free speech. let's ban something then everything will get better. it's the easy way out for politicians and for, you know, a group with a specific agenda. it doesn't help. that's not the way to do it. and i think in this whole discussion about facebook and social media we shouldn't forget, even though i'm not a
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marxist or socialist we shouldn't forget that they are businesses, they are here to make money and not to create knowledge production or challenge people. they have to make them comfortab comfortable. so we shouldn't fool ourselves about, you know, what facebook and google are doing. >> and if i can just to follow up on that, we had been talking about this a bit before, that is something else, you knew, that i think trump is really bringing to the fore. he is not a capitalist -- he is not a milton freeman capitalist, he is not like whole foods or overstock who are committed libertarians, they are committed businessmen as well and that's important but google and facebook have already shown that they are more than willing to accommodate ought democratic regimes, authoritarians regimes and that's their right and everything but we should not fool ourselves that they will
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respond to what the market demands ultimately and at this point the market and politics can be pretty close. we need to create, i guess, you know, to go back to that question of building up this market for enlightenment ideas of tolerance, of pluralism of diversity of thought and diversity of lifestyle, we need to make that the clear market choice so that given the option google will say, okay, do you know what, we're going to go with the market forces who say we want more discussion, more diversity, more conflict that is mediated in a positive thoughtful way rather than going with stupid speech laws or speech codes, i mean, the european union's code of conduct for hate speech is insane and you were saying that, you know, because facebook and google aren't getting on their knees fast enough the eu is now saying, okay, we will follow up with legislation which will be a thousand times worse. but we -- you know, let's -- this is a fight that will be fought until we die. >> right. >> what he's talking about is a
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code of conduct that was signed by facebook, google, twitter and you tube earlier this year with the european commission in order to fight hate speech. the problem in that code of conduct is there is no clear definition of what hate speech is. and they are obliged to remove hate speech content within 24 hours. >> yes. >> and the european commission so far is quite dissatisfied and they have threatened these companies to pass laws so it's not just a code of conduct if they don't move faster on these notifications. i think they have received 600 notifications within six months or so. >> certainly twitter and facebook have both cracked down significantly in their own tos and their managerial practices o in the time since in what they will allow you to say or do or
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if you are managing a page you have to take down those comments. >> twitter maybe a month or two ago deleted a bunch of alt-right accounts. twitter it's a private enterprise it's their sandbox, they can kick anybody out they want but it's fundamentally stupid because, you know, the way that i think you manage that kind of issue is by -- i mean, they kick these people out even as they were expanding the tools by which you could block or suppress people you don't want to hear from, which, again, is both great and there are problems there. we need to be critical and nuanced in our understanding of that, but, you know, this -- we -- again, we need to be in favor of more speech is always better than less speech even if it's really stupid speech. we can ignore it or we can engage it, but there are problems. the upside of that is that
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twitter as a medium has been flat, it is -- you know, instagram and snapchat actually have more daily users, nobody wants to buy twitter. >> twitter is interesting because we are talking about this market mechanism of course they have all of these legal -- legal repercussions that they are looking at but they are also looking at their stock price tanking at a time when people were saying that they were the platform for white supremacists or while nationalists. >> it's also partly because they're getting antsy yer they're cutting people off that are white supremacists or nationalists. they suspended a legal blogger who is one of the main guys on the internet really like that was nuts, you know, and like i think to the extent that the platform is flattening and their stock market price is tanking it's more because they're seen
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as being too pc. not that they're not pc enough. or that they're suddenly a hot bed for, you know, like some kind of ss tribute band or something. >> right. so on that note what is the line when we're talking about government restrictions versus private company restrictions on free expression? you know, we're libertarians we tend to believe that private companies should be able to run their businesses they want to, it's freedom of association, but at the same time we're talking about how closely intertwined all of this is. >> i think you have to make that distinction and if you don't like the restrictions of a private company imposes then you can leave and don't work there and don't buy the product or whatever it is, but -- but i think -- i think media if they insist that they are, you
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know -- is the fourth estate that has a right, an obligation to control, you know, the judiciary, the executive and legal powers, then they need to be transparent and, you know, self-critical and look inward to an extent that other businesses don't necessarily have to. they can just make decisions because they are here to make money and that's fine, but if you insist on that kind of semi-power status then i think it goes with certain obligations as well also when it comes to free speech. >> you know, the united states is odd and, you know, and unique and maybe exceptional, you know, in the language of the first amendment, which took a while, you know, to get it to come into
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being, but congress should make no law. we know that -- you know, it's not at all opaque. government doesn't have any role in regulating speech. private businesses -- and this is an interesting question about transparency because part of the argument about the facebook question were they using algorithms to kind of trash or keep conservative news town in the election, it's unclear. and i don't even think they know necessarily fully what was going on. >> a lot of it is done by little robots. >> yeah, and it's not clear what any of that means. it's also like a lot of the news stories, you know, i'm sorry but breitbart.com is a powerful force in media. it is not a news site. you know, it's an opinion site and there's nothing wrong with that, but it's -- you know, yeah, it's not news. i mean, it shouldn't be treated the same way in an al two rhythm as something else. by the same token i agree completely you should recognize -- we don't -- i don't have any control over facebook.
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facebook is a little bit different than, say, a publication like reason. we're transparent in what we public and why we public it. we control it completely and we should. readers can read it or not, they can comment or not as long as the federal government isn't on our ass about it. facebook pre tends to be this platform it's a little bit different, it's not a publication and they need to be more transparent. they have a right to do whatever they want but then they will either reap the rewards or suffer the consequences. if they're walled garden every flower looks the same in their walled garden. they're trying to keep people in -- in facebook so you never want to leave or you never have to leave. if it starts looking like a really dull subdivision or, you know, fake city scape -- >> and they're already facing this problem. they have attrition and they are younger folks --
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>> they are going to have to be more diverse and they're going to have to put in the west world vision of this they're going to have to put in that samurai module to people can check out that part of the park and not just the wild west. >> so i'm sure everyone in the audience has a lot of questions and we will get to those but before i have one more for you. based upon the fact that both hillary clinton and donald trump had called for closing down parts of the web, we've talked about the silk road -- >> within 24 hours of each other by the way. >> precisely. lots of parallels between the two. >> every time you are like, no, there actually is a difference between the republican and democratic party something like that happens. >> a little reminder. >> yeah. >> yeah, and we talked about, you know, your article was about the silk road which was of course on the deep web accessible through torr and other things like that. is there ever a justification for the government to shut down parts of the internet such as
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the deep web or particular websites or message boards or things like that and if so what would it be? >> it's going on in europe every day right now when it comes to jihadist content and denmark's parliament just passed a law where, you know, it becomes a criminal offense to share extremist content. so if you are a coscholar and y study isis and you want to share the magazine of isis with a colleague you may end up in prison. i think that's very, very problematic. >> we have had -- people get punished here as well, for instance, the dallas police department after the shooting that happened earlier this year arrested several people who had tweeted saying that it was good that cops died in dallas. i mean -- >> i mean that's very offensive, but i don't think it's a
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criminal offense. you should react, you should, you know yell at these people and denounce them, but i don't think you should criminalize that kind of speech. >> there are websites that are criminal enterprises, i mean, there are fraudulent websites that rip people off. i think something like child pornography -- child pornography, the production of it is the -- it's kind of evidence of a crime taking place. so the production of it, websites that produce it, yeah, they could be shut down. among consenting adults, no, but the justice department actually does that from time to time which i think is stupid. so i think there are clear cases that are extremely rare and limited and kind of self-evident in a way, yeah, where the government can shut down certain websites. i don't think the government can
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shut down parts of the internet. they can make it more difficult to operate. they can make it attacks, you know, in times -- in terms of your time or in terms of the possible outcome but they really don't have that and that was one of the things that was strange about donald trump, you know, who i'm hoping will be a very successful president. he actually says certain things about regulation i agree with, you mentioned the fcc, might be good on that, so far he's good on school choice he talked about why not give people more school choice. i'm for that. but he also, you know -- you know, he doesn't grasp a lot of the details and when he talked about shutting down that internet he said, you know, i'm going to talk to bill gates and it's kind of like you're already -- you know, bill gates had his lunch eaten by the internet. that was microsoft's downfall migrating to the internet. so, you know, i'm not expecting a lot of like visionary leadership on his part. but to the strength of this, he can't shut it down and most governments can't for very long.
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>> the internet is like hydra you cut off one head -- >> hail hydra. >> do we have any questions from the audience. >> i will ask that you keep them short and i will repeat them back. we have a mic coming down actually. >> hi. carl golavin. i was a 9/11 responder as a special agent with the u.s. customs service office of internal affairs i went to november of that year to ground zero and helped sift through the rubble of world trade center number 7, the third building that collapsed that day which there is a tyranny of silence in the media about that -- >> wait. are you a truther about building 7. >> i'm a criminal investigator who went -- >> you don't think the world trade center the collapse -- that was an inside job. >> inside job is foolish
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language. >> what is your question? >> i was interrupted. pardon me. this fall i hand-delivered to every member of congress a 48-page document by the organization ae 9/11 truth.org, it is scientific evidence for controlled demolition in all three world trade center towers and i actually -- >> what's the question? >> president trump has indicated there will be a reinvestigation of 9/11, he has acknowledged that two airplanes can't cause three skyscrapers to collapse within the space of eight hours. what do you think? and i do have copies of these for each of you. >> i say for myself i won't speak for you but i think that, you know, the airplanes that flew into the world trade center twin towers are what caused that to collapse and when you have that kind of event happening other parts of the world trade center are likely to collapse as well. so i don't -- yeah. yeah. yeah. and also am really deep on whether or not jet fuel with
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burn structural steel. thanks. >> i'm not sure that's a free speech question, thank you. >> i like that trump said that we should can boeing's contract for air force one which is like 100% overdue and over budget. this i think would be a waste of money, of taxpayer am un. >> question back there. >> i'm a citizen journalist and most of my stuff is free which a lot of people don't like because i'm competing with them. my basic question is this: the terror threat, the jihadi terror threat that we've been hearing particularly from isis seems to be trying to make ordinary civilians in western countries and the united states into targets as if they were combat ants, as if they were on the hook for anything we do. in other words, create a state of war in the united states. does that justify more
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censorship or more control of the internet or emergency powers that could be particularly relevant in the way i operate. it's something i'm very concerned about. >> okay. >> could that really be used as justification because individual citizens are being made target in ways that it's unprecedented -- >> if we are in a state of war -- if we are in a perpetual state of war should comments made online or through citizen journalists be treated as if they're being made during war powers? >> well, you know, this is an argument against perpetual states of war. wars that don't have clear objectives or clear endpoints or moments where we don't even know if we've won those are bad wars to wage whether it's a war on pot or poverty or radical jihad. i would leave it more to the person who is the actual object both of governmental censorship, corporate censorship and personal attacks to -- i don't
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know quite -- >> i didn't understand the request he. >> -- question. >> i think he's asking if we are in a constant state of war does that change how people should be censored online and journalists should be censored? >> i think the historical evidence speaks to the fact that in times of war government tends to overreact and it's very easy to, you know -- to turn up the heat on -- on free speech and censorship but it's very ticket to -- >> to reverse it. >> yeah. so i think experience tells us that the tendency is that governments do overreact and because in a state of war, you know, you want to identify enemies, your [ inaudible ] and
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kwie often afterwards when people look at that they say why didn't we have to ban that kind of speech but it's a natural reaction but i think you have to be on guard because people tend to overreact. and we saw it after 9/11. i mean, if you -- if you saw -- look at the kind of laws that were passed and the kind of powers that were given to the executive, how can that happen in a liberal democracy. but that was the reaction to -- >> to tie it into fake news versus real news an ongoing arguments about journalism and to the particular question of individual citizen journalists, you know, i don't know any journalists -- they are citizens of some country, right, we are all citizen journalists. there is a constant push among a kind of professional class to say we need to certify who is a real journalist and who isn't, do bloggers get the same constitutional protections as, you know, somebody at the "new york times" and it's like, yeah,
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of course they do. there is no distinction to be drawn in that. one of the ways that i think we need to talk about this overreaction is to make sure stuff like jurmism shield laws where you get to hide your sources because you work for the times or something these are all phoney ways of licensing and regulating the press. you know, one of the great things about america is that we dealt with that in the colonial era essentially and we shouldn't go down that road again. >> right. definitely. i'd like to ask this question from julia vargas on twitter asks: is the production of knowledge under threat with the rise of social media? >> we will have to wait and see but what i said, you know, this is -- this reinforcement of confirmation bias goes against the knowledge production and is kind of built into the business model of facebook and other social media, but i don't think you have -- you know, you
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control that as -- as a clear cut -- clear cut conclusion. we will have to work on it. >> one things, too, that i think is good about -- yeah, knowledge production is something we should always be guarding, you know, in favor, like we should be making it easier. i think a lot about justin amash the libertarian leaning republican congressman from michigan, he talked about how when he was at university of michigan law school which by the way is a well regarded law school of a terrible football school, but he was told by somebody -- he always thought of himself as a conservative republican because that's the family he grew up in and then somebody said, no you are a libertarian and he says he went home and he googled libertarian and he recognized who he was. so in that sense i think social media i think the internet more broadly i think this whole idea of social media is more a marketing term than a lived
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reality necessarily, but it's -- it's definitely true, you can live in a better more well furnished bubble than ever before but you can also find more weird -- all over the place than ever before. we were talking about this. if you are my age, i'm in my early 50s and i wanted to get reason magazine or a cato publication i would mail away and it would take months and then they wouldn't get it right or it wouldn't show up. it was just very hard. it's so much easier as a millennial to get more information at your fingertips about something, you know, you're watching history channel and you're -- you know, you have your laptop or tablet out and you're wikipediaing stuff as the joe is going on, i think it's a much richer environment for that kind of interesting -- >> more access. >> cross fertilization. >> i discovered the cato institute as a teenager on the internet because someone sent me the four way political test and
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i found out i was a libertarian and started raiding about it. >> just a point on knowledge production, i think a problem is the value, the culture today put into emotions. if you feel something it's right and it's very difficult to -- to argue with somebody who insists, you know, that's what i feel and i think social media with liking and sharing instead of, you know, making more elaborate arguments for one position or another also feeds this status of emotions. and i think that's undermining knowledge production because you can -- i mean, that's what's going on on campuses if you say i'm offended. it's a way of saying please shut up. and it's a very powerful argument and it feels very
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intimidating because you don't want to offend other people. yeah. you want to be nice. >> and in some schools it's actually -- >> instead of -- >> the difference between denmark and my home state of new jersey. nobody wants to be nice in new jersey. but, yeah, i think you're -- the emphasis on feelings and on emotional responses is strong. i think it's always been that way and i say this to somebody who edited the print magazine and works for an organization called reason, i -- when i became editor of the magazine i was like can i change the name to limits to reason because that is more in keeping with my sense of things. i agree it's hard but it's also -- again, we have more platforms by which to host debates and conversations and to be persuasive and if i can put on my kind of libertarian movement hat or classical liberal movement hat one of the things we need to think about especially in an era where the
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old dogmas are dying and old people, young people are looking for something new. you know, the perfect libertarian solution is private sidewalks and private air and, you know, you come on my property i'll shoot you, whatever, but we're also trying to persuade people by en jend ring or imagining a world that people want to live in because it's interesting and prosperous and fair and rewarding and moral. so that that is something -- i know i slip into every once in awhile, especially, you know, those small wee hour -- wee small hour twitter moments, you know, you want to be -- >> donald trump time. >> -- persuasive not simply -- >> on that note i have another question for twitter. corey asks how can we differentiate free speech from obscene or public indecencindec? is it dangerous to let judges
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make this distinction? >> just a short point. i think -- i think we shouldn't -- we should leave as little as possible up to judges and there is an inclination -- >> hour know the going to say that this he should be put into wood chippers or anything, right. >> no. >> if so i'm under a court order just to kind of pretend i can't hear. >> i think too many politicians and the public every time you are confronted with a new problem or with a challenge, let's pass a law to fight this problem and i think we need to be more moderate about that, but one man's hate speech is another man's poetry and it's the same with the decency and obscenity. i mean, you use a certain word
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talking here you don't think it's, you know, indecent but there may be people out in public -- >> i'm sure there are and i'm sure i will hear from them. >> that's a man of tastter of t >> it's been my life's dream to work blue on c-span so i may have accomplished that tonight. but obscenity, by the way, is a made up fake category. there is no -- there is no such thing as obscenity as a legal -- you know, as a constitutional principle. thankfully we've been moving away from that. if you don't like somebody's speech, block them, move out of earshot, don't turn to that channel, don't read that book, don't read that website. and i think it's, you know, a real positive evolution that the -- most of you probably don't even -- have never heard the phrase banned in boston which was a thing because boston would ban all sorts of stuff and it's like it's really hard to do that and i think that's good. public inn decency is a little
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bit different because in public spaces there is a lower -- you know, you have the more public a space is meaning that it's in full view and that you can infringe on other people's equal rights there is a lower standard of self-expression. >> but isn't the internet very public? >> do you know what, other than the porn ads that fill my inbox or my web browser without me ever going there once, i don't know many websites that i'm forced to go to, you know. i mean, it's -- really it's all a poll mechanism, i'm firing up my browser, the browser isn't firing me up, you know. >> fred from the daily ripple. today we watched the president elect manipulate the stock of a major corporation with a tweet.
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is there some sort of freedom of speech that eliminates the president from using that to profit from that? i mean, if he knows, okay, look, i don't like this company, i'm going to -- i'm going to buy short on them and then i'm going to say a tweet on it and manipulate the stocks, i mean, he has -- he has robert mercer a members of the jury fund manager behind him and all these other bankers that would certainly be able to benefit from that. is there an infringement of speech by telling the president he can't do that legally? >> i don't know. >> yeah, i don't know. one thing i will say i'm much more troubled by the president elect's actions towards carrier and a couple of other companies supposedly he's going to bail out or make stay in the united states in indiana, there is a ball bearing company whose name i'm forgetting right now. with boeing, you know, on a certain level, and this is an
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unprincipled answer and an emotional answer, boeing has gotten enough tax subsidies through the export/import bank and a wide variety of state, local and federal subs tease that they can suck it up for a while for a plane that they're over budget on delivering. i do think, you know, what we're seeing here actually with a president who is as kind of unbounded as trump, we're going to see some interesting kind of situations that we really couldn't have thought about before and so i don't have a clear answer to that, but, you know, boeing's stock price is a small order issue for me compared to kind of national protectionist economic policy more broadly. that i think is going to have more problems for us in the future. >> all right. i think we have room for one final question from the audience. >> bill, i'm with future 500 but i teach at haas business school
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and i've noticed over the last year that i think -- and i think you would probably agree -- that there's tremendously more support on campus by students for free and open speech and even uncomfortable speech than there is for bans or restrictions or safe spaces and so on and yet we do as faculty have some guidelines that have been provided to us to, you know, to limit that kind of -- that kind of speech. given that the combative forces are always going to attract more media attention and seem to have more dominant support than they actually do, what are folks in the free market community doing to really act ifl take advantage of this opportunity on campuses and bring more people into this movement right now when they are really ready? a lot of students see the problem, this he see it every day, they want to be organized
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but it's not going to just happen through -- i'm sorry to say -- free media coverage. it's just not sexy. what is -- what are people what are people who care about this issue doing to attract people who don't necessarily find themselves in that box on the quiz to join and begin to learn what freedom, free markets, and free speech are all about. >> i don't know. i don't have an answer. facebook and twitter. i don't know. there are a number of things that are being down. an outfit like kato and some of the groups that have come out of kato, students for liberty which was started by a kato intern,
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who started at quizen. a number of campus groups bring people to campuses and stage events and lectures and panels and whatnot at universities. which i think is a good place to start. when you look at something like the foundation for economic education fee which i think lays claim to being the oldest libertarian organization. they're rejuvenated. they are reaching more students in high school than probably ever before. reason is talk to go millennials and younger people in the way that we talk about the future, topics relate to privacy, security, free speech, gender. like acceptance of more than a binary choice in gender just as we shouldn't accept binary choice in politics. and i think that's one way to do it. and i think this, to go to that question of production, we need to be producing the public
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intellectuals. libertarians need to produce those who are writing work that engages a multiage, multigeneral racial public with the ideas of freedom and liberty and showing the positive outcomes of giving people freedom. >> (inaudible). >> yeah. i think there's some truth to that. >> -- go to the 21st century. just the word liberty is so bound with presumptions is and republicanism and so on that i think it turns a lot of students off or closes the door before they get there. >> i agree. that's an yon going issue. they did this bill poll of millennials overseen by emily eakins who is now working at the kato institute. one of the things we found in that is it was something like 42% of people 18 to 29 had positive use of socialism.
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it's like holy cow, this is a lost generation. then we followed up. the follow up question is is what does socialism mean? they had no idea. we were letting language get in the way. we asked in a parallel question, do you think -- is it better to have a better managed economy or should free markets govern the economy. and everybody was in favor of he free markets. it's a constant search to find what is that language that unlocks the next generation and polls those of us who are older. fleming and i were talking about this. in america, we have a foreign policy that is still stuck in a cold war mentality. and we're fighting radical islam ask if it is the soviet union circa 1960. the cold war isn't as clear-cut as we thought it of.
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to close that decision matrix on something today is totally wrong. and the same thing happens to our movement. we need to understand what is important to people today is not what was important to barry gold water in 1964. we need to understand and enact on that for sure. >> and people use a completely different. >> yeah. i would say if liberty is a republican word then, i mean, i spoke about toll the answer. to most people tolerance isn't a positive word. it has a positive connotation. so that's a way to start. the connection between free speech and tolerance, if you break that, you don't have toll the answer, free speech. >> so with that i would like to ask both of you in one or two
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sentences what do you really want people to get out of this discussion? what's the most important thing they can go home with? i think i'm going to repeat myself. i think the world is getting increasingly multidiverse. in order to be able to living together in this diverse world, tolerance is a key concept. not in the way it's being taught and talked about in everyday life. you should not say offensive things. but the ability to the live with things that you hate without using intimidation or violence to shut them off. and i think this will just move further and further up the agenda. more and more people are living
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in cities. so we will be confronted with this every day. unfortunately, too many politicians believe that, you know, the multidiversity we have in terms of consciousness, the less diverse in terms of speech. and i think is counter intuitive. it goes with the tear the tore if you welcome more diversity you will always need to welcome more diversive speech in order to provide space to an individual in a society. and that implies of course that no one has a right not to be offended. that's also one of the things that we have to teach our children, going back to my grandchildren. >> what position does he play, by the way? >> he he doesn't play a position. he's only 4 years old.
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>> in preparation for this, i printed out -- i write for the daily beast. a year ago i wrote a piece for them that was titled how the feds asked me to rat out commenters. that happened under the obama regime. it will happen frequently if not more frequently under a trump regime. we need to fight that always and everywhere. and it's going to happen on facebook, in the corporate space, cultural space, religious space, and political space. we should always be fighting against it. the other thing i will say as an add on is if we all broadly believe in libertarian goals, really think about being persuasive rather than being right in every conversation. and i'm the worst offender at this. what we are trying to do is build a world better than the one we inherited. i think it is getting better. the way we will make it better still is by getting more
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approximate people to want to hang out with us. not by saying, oh, yeah, your culture is so great. it is just as good as mine where we let people decide who they want to be. it is not being that tolerant. mindless celebration of diversity. i don't know how many of you are in d.c. we can live in a world like the socialist safe way on 17th street where it is is is much better than it was. we can live in a crappy supermarket world like that, or we could go to whole foods. which world do you want to be in? one is inviting, vibrant, different. one is constantly changing or, more offing, mutating in our desires and needs and wants. or we can go someplace where there is only one kind of eggplant.
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we need to be persuasive, not simply right in every type. i think i just signaled my will caye da masters. now in a land of on emojis, it means something totally different. i apologize to c-span. >> on that note, thank you all of you for coming on out don't. for those of you who tuned in to c-span or one of our online channels, i hope all of on you will enjoy this discussion today and we'll continue it out in the winter garden for our reception. he has graciously offered to be signing of his book. if you would like a copy, please feel free to pick it up. it has just come out pairbook is very recently. very convenient. please feel free to sign up for the mailing list to hear about future kato digital thes. thank you. [ applause ].
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live now to the russell senate office building on capitol hill for a portrait unveiling and tribute to senate minority leader harry reid, as he marks the end of a 30-year career from senator from nevada. 12 years as leader of the senate. hillary clinton and vice president joe biden expected to be here, along with congressional leaders. the event should be getting under way shortly. live coverage on c-span3.

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