HH: I’m joined now by Associate Attorney General of the United States, Rachel Brand. Ms. Brand previously served as assistant attorney general for the office of legal policy in the George W. Bush administration, and she was appointed by President Obama to serve on the Privacy and Civil Liberties Oversight Board. General Brand, welcome, it’s great to have you here.
RB: Good to be here.
HH: I want to talk about three things. The second one is about sexual harassment and public housing. The third one is about Section 702. But the first one, we can’t talk about, which is Russia. I want to make clear to our audience you don’t have the Russia portfolio.
RB: I do not.
HH: And as a result, you’re the third-ranking member of the Department, but you’re not overseeing anything to do with Special Counsel Mueller.
HH: What happens if Mr. Rosenstein, God forbid, gets hit by a bus or gets recused because of his memo? Do you take it over then?
RB: In the order of succession, yes, but I don’t like to engage in hypotheticals about that. So I’m focused on doing my job every day, which does not include that. And I don’t have any reason to expect that it will.
HH: So that’s why, audience, we are not talking about Russia. It’s not her job. I do want to talk about the Fair Housing Act, because before Harvey Weinstein surfaced, the Justice Department put out a note in October to people who had been victimized by the Harvey Weinsteins in their neighborhood, in their housing development. What is that all about? What is their recourse?
RB: So the Fair Housing Act makes sexual harassment in housing illegal under federal law. Sexual harassment doesn’t really, that term doesn’t really capture what we’re talking about here, because we’ve seen examples of everything from groping to rape happen with landlords, housing supervisors, real estate agents, and that’s not only a crime in some context, if it’s rape for example, but it’s illegal under federal law. So we want women to know they have a place to go. Even if the police won’t help them in their jurisdiction, they can call the U.S. Department of Justice, and we have a hotline, a website that women can call, and DOJ will actually bring a case on their behalf if they’ve been harassed.
HH: See, when I first heard about this, I didn’t think the problem could be that epidemic. But it was before the Weinstein volcano blew. And now it begins to be down at that level where people are often on the margins. They don’t think about recourse.
RB: That’s right. So we have, so we’ve seen it at the most vulnerable populations, public housing, for example, single moms who if they, you know, if they don’t give in to the sexual advances of the landlord, they might find themselves homeless. And we also see it in high rent, you know, places in Manhattan. So it’s a problem. It’s all across the country at various socio-economic strata. And it ranges, I mean, some of these cases are truly outrageous.
HH: Well, we’ll follow up on that. I do want to get to Section 702, because this is the provision of the federal law that allows us to surveil foreigners overseas believed to be involved in terrorism. But the New York Times reported this week that the Department of Justice is okay if this debate goes into the spring, and just reauthorize it for a few months. Is that true?
RB: We need this authority reauthorized this year. So the authority expires on December 31. Now if Congress does not reauthorize it before that, we’re going to have to immediately start winding down that program. And this is one of the most valuable intelligence tools we have to find out what the communications of terrorists located outside the United States are. So we’re talking, you know, ISIS fighters in Iraq, and on from there. But we need to know their communications, their networks, their sources of financing, what they’re planning. And the best way to do that, in many circumstances, is with this particular tool. So we just can’t lift it.
HH: You’ve been doing FISA under, I mean, surveillance issues under three presidents. Have the threat matrix changed? Is this a partisan issue at all, in your view, Rachel Brand?
RB: I really don’t think so. You know, when I’ve been up on the Hill talking with members of Congress in this administration and my previous role, you know, there are wide-ranging views, but they don’t really break down on party lines. So…
HH: Okay, so we know what the good stuff is. We don’t want terrorists to be able to communicate without NSA or another intelligence agency with whom we cooperate knowing about it. What are the downsides, the really legitimate concerns you’ve heard coming not just from civil libertarians, but people like me who say okay, I’ve got some questions? What are they that you hear?
RB: Well, what I hear the most often is that folks, they want terrorists outside the U.S. to be surveilled, but they don’t want Americans to be surveilled. And I agree with that. Where the rubber hits the road on Section 702 is that if a terrorist in Afghanistan emailed me, that email to me would be collected. So I’m a U.S. person. My email, that one email is then collected. And so people want to know how are we dealing with that. And the way we deal with that is with all kinds of protections that attach once a U.S. person’s email is collected. And so those protections have long been in the law. When I was in the Privacy Civil Liberties Oversight Board, which is a bipartisan body that oversees the counterterrorism agencies, we all looked at this program and thought that it balances national security and privacy well because of all of those protections.
HH: Okay, so you collect all this mass amount of data, and it’s been going on for a lot of years, and it gets bigger exponentially every year as your tools of collection grow. How do we know that the bad guys can’t break in? You know, we’ve had Snowden. We’ve had any number of breaks, and sometimes you get doxed as a result of this. People who are in the public eye find that everything that’s been known about them and collected by the government ends up spewed out there not because you wanted it, but because someone broke in.
RB: well, the insider threat that you’re talking about with Snowden is a significant concern, and the intelligence agencies are working very hard to make sure that doesn’t happen again. Now when it comes to Section 702, though, that wouldn’t be the place where you’d get the kind of intelligence that you could dox somebody with, because you can’t target an American under Section 702. You can only target a foreigner located outside the U.S. One or two emails back and forth with an American might get collected, but only those emails. If a terrorist emailed you, you don’t become a target. We’re not getting all of your emails at that point. So that’s, it’s not, that’s not really the problem when it comes to Section 702.
HH: Okay, now in the public mind, people watching on Saturday morning on MSNBC, though, they hear about unmasking. They hear about this discussion I had with the panel previously about Director Wray and Jim Jordan. They hear about Agent Strzok. What is their, you know, their concern is that this is surveillance going exponentially out of control. What’s your response to them to persuade them we need this by the end of this month?
RB: Whatever I understand legitimate concerns that people have about making sure the U.S. Government is not spying on American citizens, those are legitimate concerns. I share them. That is not Section 702. So the important thing for me is to make sure that the legitimate concerns that people have about that kind of thing do not become confused with Section 702, which is a targeted program targeted towards foreigners outside the United States with many privacy protections and oversight by a board.
HH: But can you prevent those from merging, because it’s all one conversation on the radio, on television. How do you get people to say no, 702 is very different, we need this for a very specific purpose, believe me, because that’s what you’re saying, right? You’re saying trust me.
RB: Well, it’s not just trust me, right? This is what the law says. And you know, I hate to keep going back to my service on the Privacy and Civil Liberties Oversight Board, but that’s the whole point of that agency is to take an independent, it’s an independent agency, it’s not under the supervision of the president. We don’t have to run our conclusions by the president. The five of us ranging from conservative Republicans to liberal Democrats looked at the program, looked at all the classified intelligence, and concluded that the program was lawful and was operating consistent with the statute that authorized it, and that it was highly effective. So you know, it’s not just trust me, and you can look at our 150 or so page unclassified report and learn about the program.
HH: One minute left. Ron Wyden said hey, why don’t we give them six months and talk about it? What’s wrong with that approach?
RB: Well, six months is better than nothing, but you know, in six months, we’ll be right back here again. I think we should deal with it now and not leave the intelligence community with the uncertainty that they’ll have if it’s a temporary extension.
HH: But you’re, he may not have used the term six months exactly. But if it was a time certain where we had a public debate about the efficacy of collection versus the risks of disclosure, you’d be okay with that at Justice?
RB: I think we’ve been having that debate now for at least five years, and I think all the issues have been aired. We’re always happy to talk to Congress. I had four meeting on the Hill yesterday on this issue, and we’re doing that work, and I don’t want to short-circuit the debate. But I think we’ve had that debate, and I think Congress needs to act this year.
HH: For how many years do you want the authorization?
RB: We’d like a permanent reauthorization.
HH: Permanent reauthorization from Rachel Brand. Associate Attorney General Rachel Brand, thank you for joining me.
End of interview.