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Team Glenzilla vs. Creepy Unamerican Goblins - Munk Debate on State Surveillance transcript

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Munk Debate on State Surveillance, last Friday, May 2nd, in Toronto. Glenn Greenwald and Alexis Ohanian versus Michael Hayden and Alan Dershowitz.

Tossing bouquets to Glenn and Alexis, thank you so much, and thanks as well to Canada and host Munk Debates.

Drinking game: First person to say "unconstitutional."

Transcript below fold.

* * *

“Be it resolved, state surveillance is a legitimate defense of our freedoms.”

The Munk Debate on State Surveillance
Alan Dershowitz and Michael Hayden for, vs. Glenn Greenwald and Alexis Ohanian against
Roy Thomson Hall, Toronto, Canada
May 2, 2014

Munk Debates host page here.
YouTube here.
Twitter @munkdebate. Tweetstream: #munkdebates, #munkdebate

TRANSCRIPT

Rudyard Griffiths, Moderator: Ladies and gentlemen, welcome.

[applause]

Welcome to this extraordinary debate on state surveillance. My name is Rudyard Griffiths. It’s my privilege to act as the organizer of this semiannual series and to once again serve as your moderator.

I want to start tonight’s proceedings by welcoming the North American wide television and radio audience tuning into this debate everywhere, from the Canadian Broadcasting Corporation, to CPAC, Canada’s Public Affairs Channel, to C-SPAN across the continental U.S. A warm hello also to the thousands of people watching this debate live right now on the internet, on theintercept.com and munkdebates.com. It’s terrific to have you as virtual participants in tonight’s proceedings.

And finally, hello to you, the over 2500 people who’ve once again filled Roy Thomson Hall to capacity for a Munk Debate. We just thank you for your enthusiasm for what this series is all about, bringing together big thinkers to debate the big issues transforming the world and Canada.

You know, the presence on this stage in a matter of moments of four really outstanding thinkers on the topic of state surveillance would not be possible without our host tonight, so please join me in an appreciation of the Aurea Foundation and its co-founders, Peter and Melanie Munk.

[applause]

Well, the moment we’ve all been waiting for. Let’s get our debaters out on stage and our debate underway. Speaking first for the motion, “Be it resolved, state surveillance is a legitimate defense of our freedoms,” is acclaimed trial lawyer, Harvard scholar, and storied civil libertarian, ladies and gentleman, Professor Alan Dershowitz.

[applause]

Joining Professor Dershowitz on the pro side of tonight’s contest is none other than the former head of the NSA, the National Security Agency, the former head of the Central Intelligence Agency. He’s a retired four-star U.S. general. Ladies and gentlemen, Michael Hayden.

[applause]

Now, one great team of debaters deserves another, and we have not let you down tonight. Ladies and gentlemen, please welcome serial technology entrepreneur, the co-founder of the global social news phenomenon of Reddit, and bestselling author Alexis Ohanian. Alexis.

[applause]

Alexis’s partner tonight is a person who’s been at the very center of this global debate since Edward Snowden stunned the world last June with his unprecedented leak, his exposure of America’s most intimate cyberespionage programs. In the ensuing year our presenter has become, in the words of the Financial Times of London, “the most famous journalist of his generation.” Ladies and gentlemen, First Look Media’s Glenn Greenwald.

[applause]

Okay. Before we call on our debaters for their opening statements, I need the help of everyone in this hall and those of you watching at home with three simple tasks.

First, and you don’t often say this in a gracious concert hall like this, power up your smartphones. We have an open wi-fi network broadcasting throughout the hall. You can tweet to our hashtag, #munkdebate.

Also we’ve got a rolling opinion survey of the audience tonight. That’s both for you in the hall and for those of you watching online. Pop open your browser, enter the URL www.munkdebates/vote.

And third, this is important, those of you in the hall, when you see our dastardly countdown clock appear on the screens at the end of the allotted time for opening statements, rebuttals and closing statements, please join me in a round of applause for our speaker. This is going to keep them on their toes and of course our debate on time.

One last thing before we get to opening statements, let’s find out how all of you, the 2500 of you, voted at the outset of this evening’s debate on our resolution, “Be it resolved, state surveillance is a legitimate defense of our freedoms.” Let’s have those results now, our opening vote.

Hmm. 32% agree, 47% disagree, 21% undecided. So, a debate in play.

Now, a very important question, because what these debates are all about is which one of these teams can sway public opinion. Who can change the minds of the 2500 people in this hall over the next hour and a half? So who is open to changing their vote, what percentage? Let’s have those numbers.

Wow. 87% of the audience gathered here, a very open-minded crowd. Only 13% of you are committed resolutely to the pro or the con side. A great set of results to kick off our opening statements, which I’m going to do now. As per convention, the pro side will speak first, six minutes for each opening remark.

General Hayden, the floor is yours.

Michael Hayden: Well, good evening, and thanks for coming, and thanks for the warm welcome. After I read your morning newspaper and saw that Alan and I were identified as two of the most pernicious human beings on the planet (laughs) –

[laughter, applause]

– I just wasn’t really sure.

State surveillance is a legitimate defense of our freedoms. Well, we all know the answer to that: It depends. And it depends on facts. It depends on the totality of circumstances in which we find ourselves. What kind of surveillance? For what kind of purposes? In what kind of state of danger? And that’s, that’s why facts matter. Okay. But, in having this debate, in trying to decide whether this surveillance is a legitimate defense of our freedom, we really need to know exactly what “this surveillance” is, and I freely admit, that’s hard. Okay? This stuff has been pushed out into the public domain, and you’ve had a chance to look at it, and sometimes it’s been pushed out there in a way that, well let me be kind, it’s not clear. And other times it’s been put out there in a way that’s just, um... wrong.

Let me give you an example. And of note, by the way, you know, no one has to have ill intent to make it wrong. This is actually really complicated stuff. There was one slide that was pushed out in the public domain over a program called Boundless Informant. If I were actually thinking of names that would eventually become public, that’s probably not one I would pick, okay?

[laughter]

But what it was was a heat map of the world, and it showed the metadata events that NSA in one way or another acquired in different parts of the world. And it cooked off tens of million metadata events that NSA was getting, according to the map, from France and Spain and Norway. And so immediately the story was, “Hey! These guys are ripping off the phone bills of a whole bunch of Europeans!” The reality of the story was that the French, Spanish and Norwegian services were providing NSA metadata that their services had collected not in their own countries but in internationally recognized theaters of armed conflict. It was a team ball effort that got rolled out as very aggressive collection on the part of NSA.

So, it’s hard. It’s complicated. Sometimes, though, this stuff just gets rushed to the darkest corner of the room. All right? All the ties go to the most ominous description of what’s happening, and sometimes it doesn’t even have to be a tie, it just goes to the most ominous description. Something called the PRISM program? That’s the NSA having access through Google and Microsoft and Yahoo to materials on their servers in the United States, materials affiliated with a legitimate intelligence target? That got shoved out the door that NSA is free ranging on the servers of Google and Microsoft and Yahoo, that it just was an uncontrolled NSA exploration of this data. That’s just not wrong.

Now, that story was pushed out. The Washington Post was one of the ones who pushed it out. They corrected it... on their website... over several days... without notifying people the article had been changed.

But, let’s skip all that. Let’s just all assume that we can get to hard truth, that we can actually boil this down to what CSEC’s doing here, and NSA is doing across the lake, and GCHQ is doing in Great Britain, and ASD is doing in Australia. Even then you’ve got a problem. Because even then you’re walking into a movie theater late in the third reel, and you’re looking at a scene, a snapshot of the third reel, and you’re saying, “Ah ha! The butler did it!”

Actually, you need to go back and look at the whole movie. You need to see what went on before. Because if you know what went on before, you may have a different interpretation of what it is you think the butler is guilty of.

There are three or four things that happen, that NSA and all these organizations have tried to solve. The one with volume. How do you conduct signals intelligence to keep you safe in a tsunami of global communications? Well, the answer to that, the answer to that is bulk collection and metadata.


"proliferator terrorist narcotrafficker moneylaunderer e-mails coexisting with yours and mine"

Another issue that’s out there prominently is, you know, NSA is mucking about in those global telecommunication grids that have your e-mails! No one complained when NSA was doing Soviet strategic rocket forces microwave signals. Well, the equivalent of those Soviet microwave signals are proliferator terrorist narcotrafficker moneylaunderer e-mails coexisting with yours and mine out there in g-mail. And if you want NSA to continue to do what it was doing, or CSEC to continue to do what it’s doing, what it had been doing to keep you safe, it’s got to be in the stream where your data is.

There’s a couple other things too. After 9/11, the enemy was inside my country. That’s the 215 program metadata, who might be affiliated with terrorists inside the United States, and finally when the enemy wasn’t in my country, his communications were. It’s an accident of history, but it’s a fact. Most e-mails reside on servers in the United States. They should not deserve constitutional protection if the e-mail is from a bad man in Pakistan communicating to a bad man in Yemen.

And the PRISM program is what allowed us to get those e-mails to keep everyone safe. There’s a lot more to talk about, but you’re going to start clapping in about nine seconds, so I’m going to go back to the podium. Thank you.

[applause]

Rudyard Griffiths: The command presence of a four-star general. It’s bred in the bone. Alexis Ohanian, you are up next.

Alexis Ohanian: [mike off] All right. Hello Canada. Thank you for [inaudible] basketball game going on. I really applaud you.

[applause]

[mike on] Now, we Americans and Canadians have a long history of shared values. Neither of us wants to take responsibility for Bieber, but that notwithstanding, one of those values is a right to privacy. It’s something encoded in our governments and in our societies. It’s something fundamental to who we are. We balance this with security, but the technological leap that we have made in the last couple of decades has enabled a surveillance state that goes at odds with these very fundamental rights. And the internet has made my career possible, as an entrepreneur, as an investor, but it’s also enabled a surveillance state that is simply unacceptable.

You see, state surveillance is a threat to us for three reasons. It is a threat economically, it is a threat technologically to the very backbone of the internet, and finally, and somewhat paradoxically, it actually undermines security, it actually makes us more vulnerable.

Let’s talk about that.

Both of our countries are huge draws for talent and money from all over the world because our tech sectors are leading the way. Right? It made my career possible. It’s made so many others. Forrester, however, in light of our surveillance state, has estimated that the U.S. tech sector, the U.S. economy alone stands to lose over 180 billion dollars because now our global user base is thinking twice before signing up for our services. They’re taking it to other servers where they know they still have that integrity.

You see, I just got done visiting over 77 universities across the United States and Canada, even the University of Toronto and Waterloo. And I got to meet with founders who have every right to believe they can create the next Google. However, now their users are going to think twice about running that search query because they don’t know which intelligence agency is using it. This is a real cost. There is national security in economic security, and that has been undermined by this mass surveillance.

In the NSA’s insatiable appetite for data, it has polluted the network. And we’re all on line now, right? As citizens, as companies, as governments, we all share in this online network, but the very infrastructure, the technology behind it, has been threatened, and it’s no longer healthy because of our brazenness.

Now, what do I mean by that? Well, from a technological standpoint, the worldwide web only works if it has worldwide in it, right? And now we hear countries like Germany and Brazil talking about balkanizing the internet. Steve and I never could have started Reddit with the hope of it being a truly global platform if we thought that we didn’t have access to actually anyone with an internet connection. Right? The internet works because the more people that get on it, the better it gets. And this is the environment that we’ve created. You see, we’re not just talking about law. We’re talking about the very technology. We are keeping things insecure for the purposes of hopefully using it for surveillance somewhere down the road.

Let me put it another way, all right? In layman’s terms, it is as though law enforcement found out that there was a flaw in every lock in every door in the city of Toronto, and they didn’t tell anyone. They kept it safe so that one day they could maybe use it to take advantage of some unsuspecting bad person. Now, the obvious problem with this is there’s nothing stopping some other bad actor from taking advantage of that very flaw in the system, except we’re not just talking about the city of Toronto, we’re talking about the world. And this is a reality right now. And this is simply unacceptable. A rising tide, when it comes to online security, a rising tide really does lift all boats, or secure all locks in this case. And this is something we are undermining by our actions. And it is done in the name of counterterrorism, but it’s actually making us less secure, and that’s a technological fact.

Now, speaking of security. It’s not that there is this tradeoff that I’m talking about between privacy and security. I’m not talking about that tradeoff. I’m talking about the tradeoff between security that works versus security that does not work and security that does. Instead of encouraging our government to leave these flaws open so that we can one day exploit them, we should be fixing them. Because if we were to invest even just a fraction of those dollars in making the network more secure, we would also be making our governments, our free societies more secure.

And that brings me up to an interesting point. You see, I was lucky enough as a teenager to get my first modem. Changed my life. Dorky kid in suburban Maryland. I was able to get on line and it changed my life. It’s made me the entrepreneur that I am today. It’s allowed me to invest in over a hundred companies that are hoping to do the same that Steve and I did with Reddit. But it’s enabled so much good. It’s also enabled so much bad. And that is where the surveillance state has gotten out of control. And that is the problem.

Because, you see, in the last century technology and the laws gave us a certain amount of direct surveillance that was possible, right? The laws allowed for a very specific type of direct surveillance and the technology was rather limited. There was only so much we could do. Now, thanks to the internet and thanks to some poor decisions on the part of our government, the laws are now much weaker and the technology is much stronger. Thanks to the internet, it is now cheaper and easier than ever before to conduct mass surveillance on innocent citizens.

And so while the internet must be defended, while the values we hold so dear that make these stories possible in Canada and the United States must be protected, it must not be done at the cost of our security, and that is what the surveillance state is doing. And the internet is a fundamentally global, democratic platform, and it must stay that way. It embodies all the values we as citizens in a democracy love, and we have not been good stewards of it. But now is the chance to change all that, and I hope you will work with me and Glenn to go against this motion. Thank you.

[applause]

Rudyard Griffiths: And I got to say, Alexis, those shoes are killer. Professor Dershowitz, your opening statement, please.

Alan Dershowitz: Thank you very much. I know some of you may be wondering whether I’m on the right side of this debate. I’ve devoted my life to protecting privacy and civil liberties, yet I’m for this proposition. I am because I sincerely believe that surveillance, properly conducted and properly limited, can really and genuinely protect our liberties.

Look, no state has ever survived without some surveillance, and no state deserves to survive if it has too much surveillance, particularly against its own citizens. A balance has to be struck, but that balance cannot eliminate the power of government to obtain information necessary to the defense of our freedoms. A proper balance requires a proper process for deciding when surveillance is justified, when the need for preventive intelligence is greater in any particular case than the need for privacy. And in striking that balance, it’s important to distinguish among different types and degrees of surveillance.

There’s a considerable difference, for example, between street cameras that observe the external movements of people in public places, and hidden microphones that can listen to what you’re saying in your bedroom. There’s a difference as well between accessing the content of phone calls and e-mails and cataloging the externalities of such messages, to whom they’re sent, when they were sent. There’s also a considerable difference between surveilling our own citizens and surveilling foreigners, including foreign leaders who are probably trying to listen in on our leaders’ conversations. To fail to base our policies on this difference is to fail in the very act of governance, which requires nuance and calibrations. Matters of degree matter, and differences in degree can differentiate pragmatic democracies who are genuinely seeking to protect their citizens against real harms from self-serving tyrannies that seek only to protect their leaders from accountability.

We will hear tonight that terrorism and the need to protect our citizens is only a pretext, that there are other motives, sinister motives, for why we collect this information, so I will throw a challenge out to our distinguished opponents. What are those motives? Why would the Obama administration have continued this policy of surveillance after being briefed? Was it because President Obama has some sinister motive that he won’t tell anybody about for gathering this information and is only using terrorism as a pretext the way the Nazis in Germany used the Reichstag fire as a way of suppressing civil liberties? I don’t believe that. I hope you won’t either.

Motives matter, though they too are difficult to discern and are frequently mixed. Many who supported the surveillance conducted by the FBI against the Ku Klux Klan and other racist groups during the civil rights movement opposed the very same surveillance techniques when they were used years later against the Black Panthers, and many who now applaud the decision to publish the illegally recorded private statements made by Donald Sterling to his mistress would express outrage if equally pernicious statements made in private by people they admire and respect were subject to public disclosure. Privacy for me but not for thee is as common as it is cynically self-serving.

Now we ought to be concerned about surveillance. There’s virtually nothing that’s immune from the pervasive eyes, ears and even noses of the new generation of Big Brothers. It’s absolutely true. But the most dangerous approach to our liberties is the all or nothing one proposed by radical proponents and opponents of all government surveillance. Those who oppose all surveillance are as dangerous to our liberties as those who uncritically support all surveillance.

We need to know what harms our enemies external and internal are planning in order to prevent them from carrying them out, but we also need to impose constraints, and that’s why process comes into play. We need a demanding process, but we need to make sure that the burden is realistically designed to strike a proper balance between two equally legitimate but competing values, the need for preventive intelligence to stop attacks against us, and the need to protect our privacy from those who place too high a value on security and too low a value on privacy.

I believe it’s possible to strike that balance in a manner that protects our freedoms, and that is where our efforts should be directed. Surveillance properly limited and appropriately conducted can promote liberty, protect life, and help us defend our freedoms. Our enemies, especially those who target civilians, have one major advantage over us. They are not constrained by morality or legality. We have an advantage over them. In addition to operating under the rule of law, we have developed through hard work and extensive research technological tools that allow us to monitor and prevent their unlawful, illegal actions. Such technological tools helped us break the German and the Japanese code during the Second World War. They helped us defeat fascism. They helped us in the Cold War, and they are helping us now in the hot war against terrorists who would bomb this theater if they had the capacity to do so.

You are going to hear again that there are only excuses that are being offered, that terrorism is really not a serious problem or that American policy is as terroristic as a policy of Al Qaeda. I don’t think you’re going to accept that argument.

We must not surrender our technological advantage. Instead we must constrain it within the rule of law by constructing appropriate processes governing its use. I urge you to vote against rejecting all state surveillance properly regulated as a legitimate defense of our freedoms. I urge you to vote yes. Thank you very much.

[applause]

Rudyard Griffiths: You can tell a trial lawyer through and through. Right down to the final second there. Congratulations, Alan, that was terrific. Glenn, you’re going to get the last word in the opening statements. This next six minutes is yours.

Glenn Greenwald: Good evening. So I want to begin by doing something that I’m very unlikely to do again for the next hour and a half, which is vehemently agree with something that General Hayden said, and what it is that he said at the beginning is absolutely right, which is that in order to assess the resolution that we’re debating tonight, which is, “Is state surveillance a legitimate defense of our freedoms?,” the first and I think most important question to ask is, what is state surveillance?

And the reason I say that is because if state surveillance were about targeting in a discriminating and focused way people who are plotting terrorist attacks against our country or other countries or are otherwise planning harm, there would be no debate. There would be no controversy. We could all end right now and go home.

Professor Dershowitz referenced the sinister radicals who are opposed to all surveillance and never want the government ever to spy on anybody. I’ve been writing about this topic for eight years and I have never met a single person who believes that. That is a straw man fantasy that does not exist.

[applause]

Unfortunately the actual system of state surveillance that the United States and its surveillance partners have constructed almost entirely in the dark has almost nothing to do with that. It is not what Professor Dershowitz spent the last six minutes defending, a limited system of focused surveillance designed to protect us from people who want to blow up the auditorium. If it were that, there’d be nothing to debate.

What state surveillance actually is is best understood by the NSA’s own documents and own words, which I think as you know I happen to have a lot of.

[laughter, applause]


Zing!

And that phrase that they use over and over again to describe what the system of surveillance is that they’ve constructed is “collect it all.”

There’s this remarkable and very poignant point, which is that the United States government and its defenders and officials like General Hayden have become extremely adept, because of the secrecy behind which they operate, at presenting this very mild, pleasant, moderate picture about what it is that they do when they talk in public about those programs. They’re very good at doing that. Unfortunately those descriptions are wildly disparate from what they actually do and what they actually say in private when they think that nobody’s watching them.

Over and over in the documents of the NSA are not these mild paeans to the need for targeted surveillance. It’s the opposite. It is aggressive boasting about the system of indiscriminate suspicionless surveillance that they have constructed in the dark where entire populations, hundreds of millions of people who are guilty of nothing, have their communications routinely monitored and surveilled and stored.

There’s one particular document that I find incredibly striking that was presented by the NSA in November of 2011 at a conference they called the signals development conference where they boast to their four partners about what it is that they’ve done, and this document is entitled “Our New Collection Posture,” and it says in a chart: “Collect it all, sniff it all, know it all, process it all, exploit it all.”

A federal court in the United States, a George Bush-appointed right-wing pro-national-security federal judge, in December of last year ruled that what the NSA is doing is a profound violation of the rights of millions of Americans, and he described this program as, quote, “the almost Orwellian technology that is unlike anything that could have been conceived in 1979.”

William Binney, a mathematician with the NSA for 30 years who resigned in protest over what the NSA has become, told the Democracy Now program in 2012, quote: “They’ve assembled on the order of 20 trillion transactions between U.S. citizens with other U.S. citizens.”

The Washington Post in 2011, before Edward Snowden even emerged, reported that the NSA every single day, every day, collects 1.7 billion e-mails and telephone calls simply between and among American citizens, let alone what they collect on foreign nationals.

That is the surveillance state that we are here to debate. It is unlike anything even science fiction writers in the 1950s can conceive of, and it is the opposite of the limited and focused program that our opponents are attempting to convince you exists.

Now I just want to make one point before our time is up, about something Professor Dershowitz asked, which is, what is the reason for this? And of course they need a reason, because as citizens I think we all understand the inherent inappropriateness of having the government monitor and collect data about all of its citizens and with whom we communicate and who is e-mailing us and what it is that we’re saying. And so the answer they say over and over again, that they’re going to tell you tonight over and over, is one word: terrorism. They use that word because it packs a very powerful emotional punch. And Professor Dershowitz said, if you understand it, if you want to claim that it’s a pretext, that’s some sort of conspiracy theory.

The U.S. government has used terrorism as the pretext for everything it has done in the past 12 years, from erecting a torture regime, to invading and destroying Iraq, to imprisoning people without charges in Guantanamo, to collecting the communications of all citizens throughout the globe including its own. One need not be a conspiracy buff to think that is a pretext, but just have a basic knowledge of history, and U.S. courts and government institutions over the last year have all said these programs have nothing to do with terrorism. Thank you.

[applause, whistles]

Rudyard Griffiths: Wow. Ladies and gentleman, four very formidable debaters. What a... what talent on the stage tonight. We’re going to allow them to extend their arguments a little bit further now with timed two-minute rebuttals where they’re going to weigh in on what they’ve heard from their opponents. We’re going to ask the pro team to go first, as a pair. General Hayden, you spoke at the top of the debate, so let’s hear your rebuttal now.

Michael Hayden: Okay. Two minutes is not long enough to unpack all the inaccuracies of the last 24. Alexis, I actually agree with a lot of your stuff. The balkanization of the internet would be a human tragedy, and we can talk about that in the after-prom party how we might want to do that. Glenn, I don’t agree with anything that you said.

[laughter]

A couple of quick points, because time is short. Alexis, you just kind of put the surveillance state out there as a given. You need to define that. I agree that the American industry has suffered because of the stories that some people have written. Um...

[laughter]

American industry is doing nothing more than what industries around the world are doing for their own intelligence services, and American industry is being unfairly singled out and punished because of that.

A whole bunch of other things. You mentioned massive surveillance. We do bulk collection. That’s different from massive surveillance. We can talk about that later.

Glenn says we collect everything there is. NSA actually on any given day collects – listen up carefully, it’s a big number – collects 0.00004% of global internet traffic. I have no idea what 1.7 billion intra-American e-mail collection means. That is simply not happening.

What we have here are people trying to keep you safe, and I’ve got an image coming out that the people who work and lead NSA are like that character in the Simpsons, you know, Mr. Burns, after finally they get to go, “Excellent, excellent.” We’ve got a lot more to unpack, but you get the drift. Thanks.

[applause]

Rudyard Griffiths: Extra points at the Munk Debates for any Simpson references from this point forward on. Alan Dershowitz, your rebuttal.

Alan Dershowitz: I think we’ve heard two straw men from the other side.

The first straw man is raising the issue of torture and rendition. That proves my point! I’m a liberal Democrat who voted against President Bush and voted for Obama. I hate torture. I hate rendition. I’m against all of that. But does anyone doubt that that was motivated genuinely if erroneously by a desire to stop terrorism?! Do you think that President Bush ordered these horrible things to be done just because he likes torture or likes rendition? He may have been wrong, but that was his motive, that was his goal, that was his purpose, to stop terrorism. And so let’s debate the merits of whether surveillance is good or bad, not the motives.

Second, the argument is that, “Well, if we only could just surveil terrorists, if we could only just point terrorists, if only we could live in a world like that.” That is a real straw man. Of course we wouldn’t be having this debate, because we wouldn’t be debating you. If you can figure out a way of identifying terrorists and only terrorists without the need to sometimes intrude on the conversation of somebody who might be talking to a terrorist, or who might know somebody who is a terrorist, I would be thrilled. But it’s in the nature of life that of course one has to overpredict.

We all know when it comes to guilt or innocence or punishment, better ten guilty go free than one innocent be wrongly confined, but that’s not the rule for preventive intelligence. When it comes to preventive intelligence, it’s far better that a few people have some intrusion than that one innocent person whose death could have been prevented by an act of terrorism is prevented. We have to overpredict. We have to overuse. The question is, how much? How to control it? How to constrain it? I think we can have enough surveillance that is consistent with liberty. Thank you.

[applause]

Rudyard Griffiths: Glenn, let’s have you up, and then, Alexis, we’ll allow you to close at the other side. Alexis is chomping at the bit here to get at Alan and Michael.

Glenn Greenwald: So just on the question of motive, I actually don’t care at all about motive, primarily because I don’t think I or anyone else can divine it. I don’t know why George Bush and General Hayden and the other officials in the United States invaded Iraq and destroyed it, or why they tortured people, or why they put people in prison without charges.

[applause]

I only know that it was incredibly wrong to do, and that is the same of surveillance.

[applause]

And I bring it up because it is the same mindset, the idea that if you say the word “terrorism” over and over and over enough, you can put people in fear and justify whatever it is you want to do.

As far as whether or not this surveillance is actually about terrorism, let me share with you what people inside the U.S. government have said on that question so that you don’t have to take either our word for it or theirs. The federal court I referenced earlier that ruled that the NSA was violating the rights of Americans said about the claim that it was for terrorism, quote, “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped a terrorist attack.”

A presidential review panel appointed by President Obama of his closest aides, on December 18th issued a report saying, “Our review suggests that the information contributed to terrorist investigations by the use of metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional court orders,” which is my answer to Professor Dershowitz about how else we can target people and find out what we need to know.

Three Democratic senators in President Obama’s own party who are on the intelligence committee and have access to all classified information wrote an op-ed November 25th in the New York Times, and they wrote, quote, “The usefulness of the collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security.”

They hope that they will blind you with emotion, and I hope you will focus on the evidence and the facts.

[applause]

Alexis Ohanian: Now it’s my turn. All right.

[laughter]

Bring in the nerds. All right, well I’m happy, I’m happy, General Hayden, I’m happy we’re in accord at least for the technological cost to this.

I spoke earlier about the economic costs, but I want to reiterate the fact that I am the nerd here, right? And you all didn’t hear a rebuttal about the real technological problems, the fact that the mass surveillance we are doing actually makes us less secure, and this is from a technological standpoint here, and this is something that we as Canadians, as Americans have every reason to be worried about. We should be working to make the internet stronger, to making it more secure, because it benefits all of us.

And on the issue of, “Oh, well, I suppose everyone else is doing it too,” I don’t know about you all, but I don’t want to settle, our nations have never settled for, “Oh well, that’s good enough for everyone else,” right? Our nations have been founded on principles that cherish things like a right to privacy and a right to freedom and encourage the kind of amazing things that have come out of it as a result of those policies.

And so what we’re offering you here is this. The surveillance state has run amuck. Technology that’s enabled us to send selfies 24/7 – not that valuable – has also enabled us to be spied upon 24/7. And there is a way, there is a way for due process. It was good enough for centuries before we had this technological innovation, and there is still a method to rein in this madness, but it starts by making the network more secure and not less, and not doing the things that makes everyday Canadians and Americans wonder who’s listening, who’s watching. That’s not the America I was raised in, that’s not the Canada I presume you all were raised in, and I hope, I hope with all of us together, we can get this right. Thank you.

[applause]

Rudyard Griffiths: Well the battle lines in this debate could not be clearer. Now we’re going to move on to our cross-examination period where we’re gonna get these two teams of debaters to engage with each other directly.

I want to start with a question that comes out of I think the real points of clash here in the opening part of this debate. It’s around, what are the risks that we’re defending ourselves against by virtue of having these programs? And, you know, General Hayden, let me ask you. You were there at September 11th. If these programs were in place back then, what we have now, could you have stopped that attack? Could you have prevented it from happening? I think that’s the bit litmus test that’s on a lot of people’s minds.

Michael Hayden: Yeah. First of all, let me point out, and I appreciate the question on terrorism. All right? But this isn’t just about terrorism. All right? This is about legitimate foreign intelligence activity on the part of free people to keep themselves safe and free. Terrorism is a big deal, but we do this for lots of good, legitimate reasons.

Now, to answer your question, if this program – and here we’re talking about the metadata program, which is about terrorism, because the only reason you can use the metadata is to stop terrorism. No other purpose. If we’d have had this in place, we would have known that two of the muscle guys on the Pentagon flight, the plane that hit the Pentagon, the American Airlines plane, we would have detected that they were in San Diego. That was Nawaf al-Hazmi and Khalid al-“Midabar.” They had gone from a meeting in Kuala Lumpur. We had lost lock on them there, shame on us, I wish we had kept it, but then they came to the United States unbeknownst to us. NSA actually intercepted their phone calls from San Diego, where they were staying, back to a known Al Qaeda safe house in Yemen. We listened in.

Now the trigger, okay, the selector as it’s called, why were we listening to that phone call, was because we were covering the safe house in Yemen and as the call was being made and, you know, those electrons were flitting through the global grid, NSA collection devices saw the number of the house in Yemen and we listened to the call a little more than half a dozen times. Three or four times there was enough stuff interesting on the call that we actually completed an intelligence report about it, because the safe house in Yemen was notorious. Nothing in the content of the call, nothing in the physics of the intercept told us that the other end of the call was in San Diego. The way it was intercepted, the San Diego number doesn’t show up in the technology. And they didn’t say anything in the call like, “Love the weather, the fleet’s in, we’re going to the zoo tomorrow” –

[laughter]

– that would have suggested they were in San Diego.

If we would have had the metadata program, the 215 program, as a matter of routine we’d have thrown that selector, the Yemeni number, at that mass of America phone bills and phone connections and simply would have said, “Hey, anybody in here talk to this number in Yemen?” And ka-jing, the San Diego number would have popped up.

Now that’s all NSA can do with that. NSA then would have handed that number to the FBI. The FBI would have kicked in the door in San Diego and would have found Nawaf al-Hazmi and Khalid al-Mihdhar, two people legally in the United States. They probably would have leaned on them enough, though, and found some reason to push them out of the country, and off they would have went, and so two of the muscle guys on the Pentagon flight wouldn’t have been there. To answer your question, I suspect Al Qaeda then may have called the raid off. “We don’t know what these guys gave up to the FBI, we don’t know what else the Americans know, they found these two guys, what if they’re laying in wait, call up Mohammed Atta, call the other guys, we’re off.” I suspect that would have happened. I can’t guarantee it.

But wait, there’s more. [crosstalk]

Rudyard Griffiths: Yeah. Well –

Michael Hayden: One more point.

Rudyard Griffiths: I want to bring the other side in.

Michael Hayden: One more point.

Rudyard Griffiths: Very brief.

Michael Hayden: All right.

[laughter]

Michael Hayden: If that would have happened, we still would have not gotten credit for stopping a terrorist attack because we would not have known what we had done. Thank you.

[applause]

Rudyard Griffiths: So, Glenn. Sounds kind of convincing.

[laugter]

Glenn Greenwald: Well, I have a lot to say about that, although I’ll try and make my remarks actually brief, and I understand why –

[laughter]

– General Hayden wants to claim that he didn’t have the capabilities to stop 9/11, because he was the head of the NSA at the time the 9/11 attacks took place and wants to say that “I didn’t have the ability to stop it.” But that claim, that’s incredibly inflammatory to Americans and people throughout the West, that we could have stopped 9/11 or disrupted this plot had we had the NSA programs that are now being debated, has offended the leading experts on Al Qaeda in the United States who almost always defend the United States in the war on terror. One of them, Peter Bergen, about this claim wrote on CNN on December 30, 2013: “Is it really the case that the U.S. intelligence community didn’t have the dots in the leadup to 9/11? Hardly. The failure to respond to these warnings was a policy failure by the Bush administration, not an intelligence failure by the U.S. intelligence community.”

[applause]

The other expert, Lawrence Wright, who wrote the definitive book on Al Qaeda in 2003 and won the Pulitzer Prize, similarly wrote in the New Yorker in 2014, after reviewing all of the evidence in their possession already, that the reason 9/11 happened was because they had collected so much information that they had no idea what they were collecting and therefore didn’t share with each other the information that could have stopped a plot.

And I think that’s a vital point, which is that the more indiscriminate surveillance that you do when you’re collecting billions of calls a day, and that’s from the Washington Post pre Snowden, it’s throughout all of the Snowden documents, that the NSA collects billions of calls every day. Their main problem right now is they collect so much that they can’t even physically store it all, even though you can store gargantuant information on a small little drive. When you collect that much, it’s impossible to know and to detect when somebody is plotting to attack the Boston Marathon or to blow up a plane, because they’re collecting everything about all of us rather than the people that they should be keeping their eyes on.

[applause]

Rudyard Griffiths: So Alexis, come in on that. You’re the self-professed, which you are, tech expert here. I mean, are we buried in data? I mean, General Hayden’s saying that’s precisely the challenge. There’s too much data. We have to respond to it. We have to systematize it. We have to drill down into it. Are you just saying the technology is overwhelmed by the data itself?

Alexis Ohanian: Yes. Yeah, this is a very, very hard problem to solve, and I mean the gift in the curse of all that data, aside from all the civil liberty violations, is that, yeah, there may be some signal in there but there’s a lot of noise, and it’s a very hard software problem to solve. Now, like I said, that still doesn’t, that’s still only part of it, right? Because through the efforts of this mass surveillance we’ve also undermined so much of the technology that makes the internet work, that keeps us safe, every one of us safe. And so it becomes more than just a rather offensive use of surveillance on innocent civilians, it becomes much more, because it threatens the technology of how the internet works, and works well.

Rudyard Griffiths: Professor Dershowitz? Come on in on this one.

Alan Dershowitz: Well, this – intelligence is always a work in progress. Intelligence in the context of newly developing technology is always a work in progress. I think we’re asking for too much right now, and that’s why motive is so important. And that’s why it’s so important to understand that Mr. Greenwald has conceded his major argument. He had said that this is all a pretext. Now he says, “I don’t care about motive.” But pretext is all about motive. If you’re prepared to concede that the motives are good, and that it’s a work in progress, we have to work to make it better.

Now, not Greenwald, because he says it’s a pretext, and if it’s a pretext there’s no use trying to make it any better. I argue that it’s well intentioned, well motivated, there are problems of too much gathering, perhaps not gathering the right information, that’s why we need to reform the FISA court, that’s why we need to have a range of other changes that allow us to take this work in progress and make it fit in a nice way into our war against terrorism without diminishing civil liberties. I think we can do it. We’ve done it with other technologies in the past. Let’s not throw out the baby with the bath water. Let’s not restrict ourselves from using our tremendous technological advantage that we’ve worked so hard to achieve. Let’s work to strike the appropriate balance.

[applause]

Rudyard Griffiths: So, Glenn, I mean, to understand your argument, can you see a policy where bulk data exists that strikes the right balance?

Glenn Greenwald: No. There is –

[applause] [cutaway to Dershowitz]

– no bulk data. The indiscriminate mass collection, keeping track of who it is that you’re talking to, who’s calling you and who is e-mailing you, and the government, a legitimate government, has no business monitoring and surveilling entire populations who are guilty of absolutely nothing.

[applause]

There is this attempt to suggest that, well there are different kinds of surveillance and you can listen to telephone calls and read your e-mails, or you can just collect metadata. They’re doing both. But when they say “just metadata,” there are all kinds of studies, including from a professor at Princeton, Edward Felten, who has demonstrated that collection of your metadata can actually be more invasive than reading your e-mails and listening to your phone calls.

Imagine if you call an abortion clinic, or an HIV specialist, or a drug addiction hotline, or if you call someone who isn’t your spouse late at night repeatedly, or you call a suicide hotline. Why should General Hayden and all of the national security state officials in your government and mine know that I’m calling those people so that they can use that however they wish? I do think that’s illegitimate.

What is legitimate is to have targeted, focused surveillance on people who courts have become convinced are actually guilty of some wrongdoing. It worked to keep us safe when the Soviet Union had massive intercontinental ballistic missiles pointed at every one of our major cities. It can certainly work to keep us safe from a few thousand people hiding in some caves.

[applause]

Rudyard Griffiths: Now, General Hayden, in interviews and elsewhere you said there was a fundamental difference between collection and surveillance, and these are two different activities.

Michael Hayden: There’s a difference between massive surveillance and bulk collection. All right?

Let me piggyback on a thought that Glenn put out there. He just suggested to you that the way we conducted surveillance against a slow moving, oligarchic, technologically inferior but incredibly dangerous nation state is the way we should protect you against a nimble, agile, fanatical, individually motivated, low threshold in terms of ability to detect, threat. And my point at the beginning was, you know, doing that Soviet ICBM signal thing kept you safe then, but the new threats cannot be attacked the same way we attacked the old threats.

Now, back to the metadata where I’m going to find out who’s calling their abortion clinic, you – I mean, I started out with facts matter, so I assume in the metadata issue we’re talking about the 215 program, about the phone records, all right? Because frankly that’s the only bulk metadata NSA has on American citizens, but it – [crosstalk]

Glenn Greenwald: But it collects a lot on foreign nationals too, though.

Michael Hayden: Well, we’ll talk about foreign nationals –

Glenn Greenwald: We should talk about everyone, especially in this room. They’re all foreign nationals.

[Canadian audience applause]

Glenn Greenwald: Not just Americans matter.


Zing!

[Canadian audience applause]

Michael Hayden: Accusations fit on a bumper sticker. The truth takes longer.

[rumbling, applause]

Rudyard Griffiths: Alan?

Michael Hayden: So the NSA –

Rudyard Griffiths: You keep going.

Michael Hayden: Okay, yeah, keep going. NSA gets from American telephone providers the billing records of American citizens. What happens to the billing records is actually really important. I didn’t make this phrase up but I’m going to use it. They’re put in a lockbox, all right? They’re put in a lockbox at NSA. Twenty-two people at NSA are allowed to access that lockbox. The only thing NSA is allowed to do with that truly gajillion record datafield sitting there is that when they have what’s called a seed number, a seed number about which they have reasonable articulable suspicion that that seed number is affiliated with Al Qaeda, you roll up a safe house in Yemen, he’s got pocket litter and it says here’s his Al Qaeda membership card, he’s got a phone you’ve never seen before – gee, I wonder how this phone might be associated with any threats in the United States?

So I’ll be a little cartoonish about this: NSA gets to walk up to the transom and yell through the transom and say, “Hey! Anybody here talk to this number I just found in Yemen?” And then this number, say in Buffalo, goes, “Well, yeah, I call him about every Thursday.” NSA then gets to say, “Okay, Buffalo number” – by the way, number not name – “Buffalo number, who did you call?” At which point my description of the 215 metadata program is over. That’s all NSA is allowed to do with the data. There is no data mining. There are no powerful algorithms chugging through it, trying to imagine relationships. It’s, “Did that dirty number call someone in the United States?”

The last year for which NSA had full records is 2012 – I’ll get the '13 numbers shortly – but in 2012 NSA walked up to that transom and yelled, “Hey! Anybody talk to this number?” 288 times. Now that still may offend you, but that’s not what was described over there.

[Marcy Wheeler fact checks Hayden here.]

[applause]

Rudyard Griffiths: Alexis, come back on that. I mean, he’s describing in a sense a fairly minimalist system. You and others have described something that’s pretty maximalist and pretty scary.

Alexis Ohanian: Yes.

Rudyard Griffiths: Who’s right?


"Who watches the watchers?"

Alexis Ohanian: Well, I mean you could listen to the technologist about this. As a technologist I’m telling you, yes, that metadata poses a very serious threat to us, because it is simply being gobbled up, sucked up, without any concern for due process, without any concern for the Fourth Amendment in the United States, without any concern for our rights to privacy. And in aggregate, yes, it is far more surveillance than is necessary, than is required to do that job, and I, I think, I can’t help, I can’t help but wonder, well, who watches the watchers? At this point we are going on, what, trust?

We know plenty that we’ve learned now, and now the response is, “Oh, well, don’t worry. It’s okay.” And I don’t think that’s good enough. It’s not good enough because in democracies we rely on transparency, we rely on knowing what is going on, and for too long we have had no knowledge of exactly what was going on, and then when we found out, well, it was not the kind of thing we wanted to be done in our name, and it was like I said from the very start actually making us less secure. At the end of the day I think we all agree we want security above all, but the actions we’ve been taking through mass surveillance actually in fact make us less so.

Rudyard Griffiths: So, Alan? You know, the middle ground between the two points is, it exists, the government right now maybe you think is benign, but what about some government in the future? What if, you know, I mean – what happens in this capacity, not today but tomorrow and 10 years from now, 20 years from now?

Alan Dershowitz: James Madison said if men or women were angels, we wouldn’t need the Bill of Rights. And we need the Bill of Rights because we don’t trust government, and that’s why we need to impose constraints, we need to have warrant requirements, we need to limit the ability to use these warrants, to use these surveillance methods.

But I think we have one big fundamental difference here. I think the other side assumes you can only surveil people who are guilty.

Let me give you an example that occurs, I’m sure, right here in Toronto. It certainly occurs in London. It certainly occurs in New York. Among the new primitive technologies, we now have silent cameras on street corners. That has had a major impact on reducing street crime. Now those cameras capture the images of innocent people, all of us, walking along the street and doing our own thing. It doesn’t capture what we say, but it watches us. It’s Big Brother. It’s Big Brother writ small, perhaps. And it doesn’t focus only on guilty because criminals don’t walk around with big C’s on their head. We have to have these cameras in order to send a message to criminals that if you commit a crime, there will be a video and you will be captured. That has a big impact.

So you don’t have to be guilty in order to surrender a little bit of your economy and privacy in the interests of preventing major crimes.

So we ought to understand that we live on a continuum, a continuum of dangers, a continuum of rights violations. Not all rights violations are the same. Having yourself monitored walking through Times Square is, as I said in my opening, very different from having the government intrude and listen to what you say in your bedroom. And that’s the kind of debate we should have, not have debates about innocence or guilt.


"Due process is the process that is due you based on the degree of intrusion
compared to the degree of benefit the government gets out of it."

Due process is very nimble and very flexible. It is the process that is due you based on the degree of intrusion compared to the degree of benefit the government gets out of it. That’s the way we ought to have this debate.

We ought not to end all surveillance and all intrusions, and although Mr. Greenwald keeps denying this, when you really listen closely to what he’s saying, it really sounds like he’s against all surveillance unless you can find a guy with the Al Qaeda card wearing an Al Qaeda baseball cap, an Al Qaeda uniform, and if you can’t pinpoint him and identify him, don’t you ever dare to try to find him by intruding even slightly on the privacy interests of innocent people. That’s not the way government works, nor should it work that way.

[applause]

Glenn Greenwald: You know, I completely understand, I really do, why Professor Dershowitz wants to attribute to me these positions that are completely laughable and ridiculous, because it’s so much easier to debate people when you can pretend that they hold moronic positions that they don’t actually believe.

[laughter, applause]

It is – [crosstalk] – it’s super easy. If I believed what he just said I believe, I would urge you to vote against me. I don’t believe any of that.

There is a process that has been in place from the time that the United States was telling the world that the Soviet Union is this evil empire that is the greatest threat known to man, that all presidents, Democrat and Republican alike, understood could keep America safe by following, which was going to a court before you surveil somebody and listen to their phone calls, and not present definitive proof-positive evidence that they’re guilty of something but enough reasonable cause so that there were safeguards over who it was who was being monitored and surveilled, and you have enough of an ability to then listen to see whether or not there was cause to believe they should continue to be surveilled. That process has been – [crosstalk]

Alan Dershowitz: Would you require –

Glenn Greenwald: That process has been –

Alan Dershowitz: Would you require a warrant for the camera that I talked about?

Glenn Greenwald: No. And I’m going to explain why. The example of, let’s just put a camera on a street corner and watch what people do on the street, I think proves our point. Because invading what you do on the internet is radically and fundamentally different. The internet is not simply a place that you pass by on the street. And I think one of the reasons why around the world younger people have been so supportive of Edward Snowden and view him as a hero and have been so supportive of these disclosures is because they understand what the internet actually now is for the world, which is not simply a place that we pass by on the way to do other things, it’s the place where we explore who we are as human beings. It’s where we make our friends. It’s where we read. It’s where we think. It is everything about who we are, and to allow the internet, not a street corner but the place of this virtual reality where we exist and grow and explore, to have all privacy removed through this collect-it-all mentality, which remember is not my phrase, it’s theirs, is a kind of invasion unlike anything that has taken place.


"it’s the place where we explore who we are as human beings. It’s where we make our friends.
It’s where we read. It’s where we think. It is everything about who we are"

Let me just leave you with one quote from James Bamford, who is an NSA historian who has worked on these issues for a long time, who said that, “If you allow the NSA the ability to invade people’s online activity, you are allowing them to invade people’s minds, their thoughts and their very persons.”

And I think we all understand the value of privacy, even those of you who voted yes on this resolution at the beginning, I can guarantee you all put passwords on your e-mail and social media accounts and locks on your bedroom and bathroom doors. You wouldn’t want me on General Hayden or anyone else trolling through it, because as human beings we all understand that privacy is a unique guarantee of human freedom. It’s where creativity and dissent and exploration reside, and when that is gone, so too is a crucial part of human freedom.

[applause]

Rudyard Griffiths: So that’s a perfect segue to now call for a video that was created especially for tonight’s Munk Debate. It touches on what the internet means, how surveillance impacts on it. It’s brief, but it focuses on a point of accountability, which I want to come back to and get the panel to weigh in on. Ladies and gentlemen, please listen now to Edward Snowden especially for the Munk Debates.

[applause]

Edward Snowden: So this is a part of what today’s state surveillance looks like, but it’s important to remember that it doesn’t stop with phone calls. It covers your e-mails, it covers your text messages, your web history, every Google search you’ve ever made and every plane ticket you’ve ever bought, the books you buy at amazon.com that are, the transactions are sent in plain text where it’s unencrypted, and anyone, whether it’s, you know, the NSA or some other foreign intelligence service, can collect it and store it for increasing periods of time. It includes who your friends are and how you communicate with them. It shows where you go and what you want to be. It also shows people in charge of state surveillance who you love, and it shows them where these people live.

Now defenders of this kind of unconstitutional dragnet surveillance might say that there’s no room for abuse because we have policies in place to address these concerns. But can policies that change with every new president, with every new Congress, with every new director of the NSA, really address the threat of building inside our own country this kind of architecture of oppression? What about other countries that don’t abide by our policies? Is leaving our communications insecure so that the NSA can monitor them and those of our adversaries really worth the cost? And we have to remember that policies aren’t perfect. Despite policy, I as an NSA analyst, sitting at my desk, had the technical authority to wiretap anyone from a federal judge to the president of the United States without getting out of my chair, as long as I had a private e-mail address, and that’s not a boast.

Rudyard Griffiths: So that’s a snippet of a special seven-minute statement that Mr. Snowden recorded for the Munk Debates. Tonight it’s live right now on our website, www.munkdebates.com/snowden; for those watching online, have a look.

So, Alan, let me come to you on – he made sort of a variety, a number of points there that we’ve covered, but a key one that I think is on the minds of this audience, which is accountability. I mean, to what degree do we have a system in place now that is powerful enough to harness this technology in the ways that you want to see it harnessed, when Edward’s claiming that he can get on his computer, not even as an NSA employee but as a contractor, and log into the president’s e-mail.

Alan Dershowitz: Well, first of all, I think General Hayden should answer that question, then I’d love you to come back to me, but whether or not that’s true or false, that’s a factual statement.

Rudyard Griffiths: Okay, well, let’s start with facts. General Hayden.

Michael Hayden: Facts? Okay!

[laughter]

If Edward Snowden were able to do that, that would not only be a violation of the laws of the United States, it would also violate the laws of physics. Okay. He had access to NSA’s administrative network. He did not have access, thank God, to NSA’s operational network. That’s not the first time he’s said that. There’s no one in NSA who believes there is any possibility that that could be true, factually true. He may claim it’s “artistically true” (snark air voila gesture) in the sense that somebody at NSA who actually had authority and was on the right network might do that, but that’s my segue to Alan. Because this is very, very carefully overseen. You can’t – actually, the rest of the Snowden statement is actually quite interesting. For the first time – I think this might be Snowden 2.0, because he actually makes a distinction between what’s possible and what is actually being done, something that a lot of folks don’t do. (gestures toward Greenwald and Ohanian)

Alan Dershowitz: Well, let me follow up on that. The United States Supreme Court on Tuesday of this week heard one of the most important arguments that it will hear this year, and the issue that was before the Supreme Court is, if I were to get arrested, say for jaywalking or for driving my car without a seatbelt, under current rules the person, the policeman, searching me can seize my iPhone and can access all the data in my iPhone, including my medical records, my tax records. This isn’t the NSA! This is what happens when modern technology confronts the Fourth Amendment. The Supreme Court heard argument. Nine justices, eight of them expressed their views, and then there was Justice Thomas.

[laughter, applause]

But eight of them expressed their views, and they were deeply divided. And I really urge you to read the transcript because it really shows how our Supreme Court works. You can tell that they were deeply confused, deeply troubled, and trying to figure out a way of applying the intention of the framers, who wrote in 1793 and couldn’t imagine this modern technology, and the words of the Fourth Amendment, which talk about reasonable, to the modern technology, and the Supreme Court doesn’t only write for today, it writes for next year and next decade and the decades after that.

Again, this is a work in progress. We must get accountability. We are trying to get accountability. Technology is always ahead of the law. I tried to teach my students in 50 years at Harvard not how to practice law today but how to practice law when you’re my age, 50 years from now. It’s always a quest. The struggle for justice never stays won. But that doesn’t mean you make cellphones or iPhones illegal. It means you try to work to constrain them and to create accountability.

The answer to your question is, we don’t have enough accountability now, but we’re getting there, and you can help us get there.

By the way, this is not an American problem. The Five Eyes work together, the United States, Canada, New Zealand, Australia and England. They share intelligence information. You are not foreigners when it comes to your own government. Your government is trying to protect you as well and your Supreme Court is trying to struggle with these issues.

Don’t make it the debate, as Mr. Greenwald still is making it, between good and evil. There are good people struggling to do the right thing. Let’s keep the struggle going, but let’s not throw out surveillance which requires sometimes surveilling innocent people. For example, the videos. [crosstalk]

Rudyard Griffiths: You know, Alan, we have to be conscious of equal time here –

Alan Dershowitz: It will catch women going to their abortion clinic. It will catch Donald Sterling going to his mistress.

Rudyard Griffiths: – so I’m going to keep talking until you let me bring Glenn in.

[applause]

Glenn Greenwald: So I began by saying that U.S. national security state officials are very adept and very skillful at presenting a public image that is wildly different than the reality, and of course the whole NSA scandal began when James Clapper, the Director of National Intelligence, went before our Senate and was asked whether or not the NSA is mass collecting data about millions of Americans and he looked senators in the eye and said, “No, sir,” and then the very next, the very first story that we reported from the Snowden archive two months later proved that the NSA was doing exactly that, which the top national security official of the United States government falsely denied to the Senate and to the public.

And so when you hear things like, “Mr. Snowden,” who whatever else you think of him has never been proven to prevaricate, “is not telling the truth when he says that sitting at his desk he could have wiretapped anyone,” I can guarantee you that is exactly what NSA analysts have the capability to do that, and the evidence for it, don’t rely on my word or his, is the XKeyscore program, which we reported on in the Guardian in September of 2013 with ample documents that show an analyst training manual walking them through and saying, “When you want to eavesdrop on a particular e-mail, here is the screen where you do it in.” You enter the e-mail and the justification. Nobody checks what it is that you’re doing. You simply then start getting those e-mails exactly as Mr. Snowden said.

And the question of whether there’s really any safeguards. He said, “Oh, it’s in a lockbox, don’t worry, we’re collecting all your data but it’s very well protected.” Aside from the fact that history proves that you cannot trust governments to collect information and not abuse it, think about this fact. The NSA is an agency where Edward Snowden sat for many months and downloaded all of their most sensitive documents.

[laughter]

They had no idea that he was doing it.

[applause]


Zing!

To this day, to this day, they have no idea what he took. They say that all the time. Even though they’ve spent tens of millions of dollars trying to figure it out. Does that sound like a very well managed system to you that you can trust with all of your data not to be abused?

[applause]

And the last point I want to make is, you know, Professor Dershowitz for some reason keeps returning to the issue of motives, which I said at the beginning I don’t think matters. [crosstalk]

Alan Dershowitz: What does pretext mean?

Glenn Greenwald: I don’t think it matters if somebody invaded Iraq because they’re an evil person or was incredibly misguided and amoral. But here is what I do know.

[laughter]

Here is what I do know. In an interview before the event that he gave, Professor Dershowitz said the NSA talks about this FISA court as oversight, and yet the FISA court is pretty much of a joke, it just gives out warrants, as he said, like lollipops, and I agree with him on that.

And the reason is this. Whatever the motives are, the climate in the United States after 9/11 got out of control. 9/11 was a very traumatic event. I was in Manhattan on that day. I remember the emotions it triggers to this day. And the balance that we always have or try to maintain got completely out of whack so that everything that was justified in the name of terrorism, from destroying a country of 26 million people, to putting people in prison without charges, to torturing them, to spying on everybody’s e-mails and telephone calls – anything that got justified in the name of torture got done.

That is what is wrong, that is what is dangerous, and that is what I hope you’ll reject tonight by voting against this motion.

[applause]

Alan Dershowitz: So are you then prepared –

[still applause]

Alan Dershowitz: Are you then prepared, Mr. Greenwald, to withdraw your accusation of pretext, because you say motive doesn’t matter, and you can’t have pretext without a bad motive.

Glenn Greenwald: My basis for saying that terrorism is a pretext, and I doubt you want me to read it again, although I’d like to –

[laughter]

– is the federal court judge, President Obama’s own panel – [crosstalk]

Alan Dershowitz: They never said that.

Glenn Greenwald: – the think tank –

Alan Dershowitz: They never said that.

Glenn Greenwald: – I quoted them saying –

Alan Dershowitz: Show me the word pretext.

Glenn Greenwald: – that the –

Alan Dershowitz: Show me the word pretext.

Glenn Greenwald: I quoted them saying –

Alan Dershowitz: Show me the word pretext.

Glenn Greenwald: – that the program has – you can keep screaming that and it doesn’t change the point –

[laughter]

Alan Dershowitz: What’s the point?

Glenn Greenwald: – that everybody who has looked at the issue has said that these programs have played virtually no role –

Alan Dershowitz: That’s a completely –

Glenn Greenwald: – in stopping terrorism. It is not the reason that it is being done, because it does not work.

Alan Dershowitz: It’s a completely different point. You’re saying what they have said is they were well intentioned, it wasn’t a pretext, but there’s no evidence that it worked. If you can’t understand the difference between those two statements, then you really are what you described yourself as not being previously.

[laughter, applause]

Glenn Greenwald: Senator Wyden: The threat has been greatly exaggerated, greatly exaggerated. That is what three Democratic senators with access to the classified information, which you don’t have, [crosstalk] actually said.

Alan Dershowitz: The results were exaggerated, not the motive.

Rudyard Griffiths: It’s a hot debate. That’s for sure. And before we go to opening, closing statements, I want to provide Alexis Ohanian the opportunity to reflect on Snowden’s statement and what kind of came out at you from that statement that you think is a key point for your side.

Alexis Ohanian: Wow. Well, this has gotten spicy.

[laughter]

I, uh, like I said, I’m the nerd here, all right? I still want to point out that there – my first opening remarks about the fact that what we are doing for mass surveillance actually undermines the strength and security of our nations as well as oversteps the bounds and the rights of privacy that we all have. Like, this is still a fundamental truth about what is being done from a technological level, and ultimately on top of that, remember, Canadians, Americans, right, our governments work for us. They are ultimately responsible and beholden to us. We employ them. We sometimes hire them, sometimes we fire them, but they work for us.

And the way this entire thing has been handled over the last 20 or so– to give you a perception of just how much this technology has advanced, all right? Technology does not grow linearly, it grows exponentially. And what I mean by that is when you think about how much technology has boomed in the last 20 years versus the 20 years before it, it is an order of 10x, right? We can do things now in the last 20 years that we couldn’t have even imagined some 20 years ago. And a lot of those things are great, but some of them are not, and one of the things that has run amuck, because of this technological boom, because of how much of a role the internet plays in our lives, is this surveillance state. And the principles we used to keep our nations, our free nations, safe in the 20th century don’t work in the 21st. They are causing abuses that we can do something about. And I hope that’s why you will vote with us against this motion.

[applause]

Rudyard Griffiths: Okay. Moving the debate along, it’s now time for closing statements. We’re going to give each of our debaters three minutes. They’re going to speak in the reverse order of the opening, so Glenn that means you are up first.

Glenn Greenwald: So, I feel like I anticipated moderately well one of the problems that this debate was going to entail, which is the ability of each side to make claims about what the thing is that you’re supposed to vote on, which is the surveillance state. Is it this is nice, well-motivated work in progress where we just try to eavesdrop on the terrorists but oh so accidentally and just very occasionally bump into your g-mail by accident?

[laughter]

Or is it what the NSA actually described it as being when they didn’t know that you were listening, when they were talking only amongst themselves, when they were planning on what their institutional aspiration actually would be: “Collect it all, sniff it all, process it all, know it all, exploit it all.” Those are not my words. Those are the words of the NSA working in a top secret environment, because that is actually what you should be voting on is what they are actually doing, and not Professor Dershowitz’s aspiration for what one day he hopes it someday might be. The way to get to that point is by rejecting what it now is as excessive and menacing and dangerous.

The second point that I think is vital to make is the one that Alexis just touched on, which is this now mockery over the idea that what kept us safe from the Soviet Union is simply woefully inadequate, namely, not getting proof that someone is wearing an Al Qaeda hat but going to a court and having evidence be presented that someone is a legitimate surveillance target before allowing the NSA to invade their system. If you go back and look at what was said by Ronald Reagan and world leaders in the ‘70s and ‘80s, it was “The Soviet Union is the greatest threat ever to mankind,” we went to wars to prevent them from doing what we said they wanted to do, and now suddenly it becomes, “Oh, those were nice reasonable people who we could manage, it’s really these terrorists in a cave that we have to fundamentally dismantle our system of liberties in order to protect ourselves from.”

And General Hayden keeps asking for facts and I think I presented facts a lot of this debate, but let me just leave you with a few more. In 2009, the global news service McClatchy characterized the threat of terrorism this way. Quote, “Undoubtedly more American citizens died overseas from traffic accidents or intestinal illnesses than from terrorism.” Harper’s in March 2011 offered this statistic: “The number of American civilians who died worldwide in terrorist attacks last year: 8. The minimum number who died after being struck by lightning: 29.”

Terrorism is a real threat. It is not anything to make light of. But there are all sorts of threats that we guard against and keep ourselves safe from, not by dismantling our fundamental liberties like the right to privacy or the limitations on the government ability to know what we’re saying, but by balancing them and by affirming the values that we’re trying to protect in the first place. Thank you.

[applause]

Rudyard Griffiths: Professor Dershowitz, your closing statement.

Alan Dershowitz: I think we need less surveillance than what we have now, but more than what we would get from the other side that would require a warrant to specify with particularity the suspicion level against anybody on whom we would surveil at all. We need a reasonable middle ground on which we can use some surveillance based on less than probable cause in order to target people who are trying to do harm for us.

Now, terrorism is real, and it’s different than viruses, it’s different than being struck by lightning. It’s an essential attack on the very core of our country and our people. I actually believe, and the reason I’m on this side of the debate, is that one of the greatest threats that civil liberties faces in this country would be another terrorist attack like 9/11. Even if fewer people are killed than in traffic accidents, if we had another attack like 9/11 the devastating impact it would have on our civil liberties would be incalculable.

If you don’t believe me, just think back to Canada in 1970, some of you may be old enough to remember this, when two terrorist kidnappings resulted in the invocation of the War Measures Act which deprived Canadians all over the country of some of their basic civil liberties. I know, because I along with Irwin Cotler served as consultants to the liberal prime minister, Pierre Trudeau, and to the liberal Attorney General, John Turner, in those days, to try to figure out a way of reducing the impact on civil liberties without diminishing the prevention of terrorism, which was a real threat in those days.

It’s the interests of every person who cares about liberty to take reasonable steps to prevent another mass casualty attack. A surveillance system directed against terrorism and those facilitating terrorism, which will have false positives, which will result in the intrusion on some privacy of some people who are innocent, is essential both to the defense of our citizens and to the protection of our liberties. I urge you to vote for this proposition and to allow our governments, all of our governments, the Five Eyes, to work together to allow us to have the intelligence necessary to prevent a recurrence of 9/11.

Will it prevent it? Nobody knows for sure. Will it increase the likelihood of preventing it? I think we can be fairly assured that’s the case.

We need to improve our system of surveillance. We need not scrap it, because reasonable state surveillance is a legitimate defense of our freedoms.

Do not vote to tie our hands, to deprive us of an essential tool in the real war against real terrorism. Vote yes on this proposition if you want to see a proper balance struck between the legitimate need for surveillance and the equally legitimate need for privacy.

[applause]

Rudyard Griffiths: Alexis, your three minutes.

Alexis Ohanian: Thank you. Well, Mr. Dershowitz, it sounds like we might be winning you over, at least with the idea of some less surveillance.

Now look, technology has enabled so much. It’s made my career possible. It’s made so many others. With that technology, as I’ve said before, we have enabled a surveillance state that is out of control. All right, and I started this from the very beginning. I said, look, fundamentally this is a problem because, one, it affects our economic strength, and economic strength is a core part of our national security. It affects the underpinnings of the very technology that makes the internet work. The things we are doing along – have huge impact on data protection, on localization, and it gives comfort to the leaders of countries that want to use the internet to spy on their own citizens, to surveil them. This is important, because upon hearing all of those things, it still doesn’t cover the fundamental point here, which is that what we are doing in the name of security actually makes us less secure. It makes us more vulnerable.

Remember the example I gave of the key, all right? That is the layperson version of what we are doing. We are finding flaws in the system and we are holding onto that key for ourselves, leaving every one of our homes vulnerable. And yes, I am from a generation that can’t imagine a world without the internet, but I have a feeling most of you feel like the internet has become pretty indispensable. And yes, it is the place where we go not only to start companies but to have discussions, sometimes combative ones, to make new friends, to have relationships, to find that there are other people all over the world, all over the worldwide web, that have ideas we can benefit from and then remix and share. All of those things are possible because we have a flat internet. Sorry, Tom Friedman, the world is not flat, but the worldwide web is. And our nations have done so much to lead the way in innovation because every one of us as citizens had the belief that our privatemost thoughts were safe and were secure.

And so what I’m saying is this: State surveillance is not acceptable in this internet age, because for all that we have had, for all of this innovation, it can all be undone. We are doing far more of it, on far more innocent people, than we have ever done before, and like I said, in the past technologically it was impossible and the laws kept us doing direct surveillance. Today the laws have been weakened and the technology makes it cheap and easy to gobble up all of that data about every single one of us. And this is an unprecedented situation where surveillance disproportionately affects innocent people, and there is a technological answer but it is not what is being done.

And so I will leave you with this: I know there are good people at the NSA trying to keep us safe. I know they have our best interests at heart. I know the surveillance state is full of people who were maybe preoccupied with whether or not they could, but they didn’t stop to think about whether they should. Thank you.

[applause]

Rudyard Griffiths: Final opening statement goes to you, General Hayden. Closing statement.

Michael Hayden: Thank you. Well, I started out as pernicious, picked up untruthful and untrustworthy along the way, but apparently as a former U.S. intelligence official I’m a good storyteller, so here goes.

Talk about scare tactics. We need to run the tape sometime and count how many times Alan and I said terrorism and how many times that Glenn and Alexis said surveillance state. Okay. What do they really mean by surveillance state? One point seven billion U.S. e-mails a day collected? No, that’s just not true.

“The surveillance state is out of control. They’re monitoring,” just now Alex, “every single one of us. We’re gathering up the information on far more innocent people.” I need to know the what! It’s hard for me to counter that. What is it you think we’re doing? I love the Snowden quote. You know, it kind of, um, you know, it covers your text messages, your web history, your searches you ever made – that’s Google. That’s not NSA, okay?

[laughter, applause]

Boston bombing. Tsarnaev kids. Visited jihadist websites. After the attack, the American security establishment gets slapped around by its political leadership. “How come you didn’t know they went to jihadist websites?” Because we’re not allowed to monitor internet activity of Americans or lawful permanent residents. And as a matter of policy, we’re not allowed to monitor your internet activity either, along with the Canadians and the Australians and the New Zealanders. What they’re describing simply isn’t going on.

With regard to the Soviets and the threat, I didn’t say they were reasonable or safe, I just said their communications were on a dedicated isolated network where yours never coexisted and that creates a new dilemma.

With regard to oversight, Glenn mentions Judge Leon, who said that the program was probably unconstitutional. That makes Glenn’s side 1 for 37 in court decisions on the constitutionality of this. And, oh, by the way, Leon stayed his own decision.

And with regard to the three Democrats who articulated opposition to this program for both civil liberties and effectiveness questions, those three are on a 15-person committee in the Senate, and those three were outvoted consistently 12 to 3.

NSA’s mantra “collect it all” doesn’t mean collect it all. They drown. They can’t use it. What it means is they want the ability to cover any communications by any method at any time by those who would do you harm. Trust me. If what Glenn –


"Trust me."

[laughter]

[laughter]


Game.


Set.


Match.

– says is true, and if what Alexis fears is true were true, I’d vote for them too. Thank you.

[applause]

Rudyard Griffiths: Well, ladies and gentlemen, a superb debate on a complicated, important topic, and we couldn’t have done it without these four gentlemen. So a big round of applause for our debaters. Bravo.

[applause]

And a big thank you to our hosts tonight, who year after year have supported this debate series tirelessly, the Aurea Foundation, Peter and Melanie Munk, thank you for this debate series.

[applause]

Now. For a crucial part of tonight’s proceedings, which one of these two teams has been able to sway opinion in this hall?

Let’s review where the vote stood at the beginning of tonight before we had listened to the last hour and 40 minutes of debate and conversation. So can I have the numbers for the initial audience vote. 32% agreed with the motion, 47% disagreed, a not insignificant 21% undecided.

We then asked the percentage of you that would change your vote depending on what you heard. Debate very much in play with 87% saying they’re open to changing their vote.

Now, for those of you who are watching online, this debate is not over. We have a post-debate analysis starting up right now on the munkdebates.com. You can share your opinions on what’s happened over the last 40 minutes with a top Reuters technology journalist, Ontario’s privacy commissioner, and Ron Deibert, Canada’s great cyber expert at the Munk School of Global Affairs.

For those of you here in Roy Thomson Hall, you lucky 2500, you’re all going to get another paper ballot, but we’re going to force you, no undecided this time, no kind of hiding out on the sidelines, you’re going to have to choose yes or no on the resolution. We will announce those second-ballot results in the south lobby shortly before 9 p.m. You can also purchase books by some of our debaters in past debates, and for those of you who want to watch the full Snowden tape that he provided exclusively for tonight’s debate, it’s up on our website right now, www.munkdebates.com/snowden.

Ladies and gentlemen, thank you for a marvelous debate. Let’s see how it turned out!

[applause]

* * *

 


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danps's picture
Submitted by danps on

Thanks so much for posting this. It must have been a lot of work, but as lambert likes to say transcripts are gold.

Submitted by lambert on

And of course -- I just searched the page -- it was Edward Snowden, on tape. Awesome!

Thanks for this, transscriber!