idea of the internet as one of the tools obviously we exploit every chance we get but it is beginning to the bronx the belief system but we get another battle about nomenclature but terrorism is a tactic used for millennia, thousands of years and our job is not to have the muslim world that the would embrace democracy as we know it the first job is to undermine what ideology stands for.

>> al qaeda elevates the murder bombers. do you know, where the marchers are common the men and women and children that killed at weddings and funerals and bazaars and mosques. we have to use these communications tools to define the broader muslim world there's nothing in their ideology that suggests that a muslim will enjoy a better life better education , and stop transformative in human terms of we use the internet as a couple of devices to undermine before they could embrace the notion of how we live, we have to demonstrate that what the extremist want you do is inconsistent not

only with their religious believes that want to live their lives with their children and the old "politico" average that we really have not addressed ideological issues and again exposing and attacking to help facilitate the ideology and its own weight. what it implode as it is not the jihadi web site or the chat room but the hand to hand more it becomes a some point* this ago. we have time for one last question. >> from a homeland security policy institute the structure you talk about but

this is what has gotten us where we are today and talented people try to keep america safe but when the president spoke the other day he emphasized the government will ensure americans are safecracker if you look at europe and other places where terrorism takes place, they don't tell their people back terrorism is the fact of life and you have to live with it and you have to help us prevent it. have we been into a sense of complacency because your government will keep you safe? wineries start a campaign that gets people it is engaged and participating? >> ties into the question about how do we go to the

general public? i do think that you highlight a concern i have had for some time. that is accepting the reality. go back to the initial question what keeps you up at night? probably the people in the intelligence community but this is a reality. it is the new norm and we presume government will do everything they can to keep us a fan presume that after an incident all of the resources of the country will be the best we can focus on the perpetrator or discovering if there are any other packages but that is the assumption. and a pretty good one. it is about the broader discussion to say we don't live in fear we are a

resilient century and if it does happen again hopefully we could get the perpetrators but it is something we will deal with so accept it so let's do what countries do all over the world and move on. three are strong enough. we just have to have our elected officials talk responsibly about the ongoing nature and frankly and this instance the middle east and the u.k. it is a fact of life just accepted for those who try to make us secure let's just allow but let's get more engaged overseas economically and don't forget that the end of the day america's future security and prosperity

requires more engagement overseas, not less been i think you on that note please tell me if thinking thinking -- and the thinking the governor. [applause] [inaudible conversations] and [inaudible conversations]

[inaudible conversations] [inaudible conversations]

[inaudible conversations] and i am sure we will continue to take to reduce the risk at the end of the day to get the perpetrators before they strike. offense, perpetrators, a defense and that combination of both and we will continue to walk on -- work on an perpetuity i am afraid. >> [inaudible]

>> i will all leave that decision to the president and the state department's as they are in charge part of the bottom-line that is a difficult decision any administration has to make but the source of terror of the source of the threat to your troops, the source of training in is in another country come reversed need to get the collaboration and cooperation of those countries. if it is not forthcoming and threats continue to persist, then you have the challenge whether to take bilateral action with the military and diplomatic members of the president's team. pakistan is a great ally and have done a lot but in certain areas on the border, with good drones it

has created problems and externally and internally but at the end of the day it is about trying to be as sensitive as 3k and. there has been the elevated amount of strikes but there are things behind the scenes with discussions. >> how does all this security work against that? >> then democracy within homeland security is the right agency to be integrated. one of the concerns that i have is we have built into the information process, a huge infrastructure and sometimes i wonder instead of people acting on information end, it appears to be actionable from they

did go but then let somebody else decide. have to be careful not to substitute process for our judgment. one final question. >> of the security plan release a bit on draw line between all men security, great britain. should we be moving in that direction given the international implications? >> i would love to answer the question once i see the report. it is interesting it has not been a point* of contention here in the united states. but a reason for more traditional phone time to time to be integrated into home and security protocols. using north, to talk about maritime, working with the

coast guard to determine maritime responsibility and dhs with capabilities that there are certain incidents require military assets within the country. whether or not they are viewed as one i don't know. having not read the report but since then 11 there has been times and locations and resents for the military to be integrated at certain times with homeland security. thank you very much. [inaudible conversations] [inaudible conversations]

>> with control of congress up for grabs in the next election and looking at potential leadership changes when it comes to telecommunications policy as well as legislative proposals the democrats and republicans may take up in a 112 congress when it comes to telecommunications and have to former capitol hill

staffers who both work on telecommunications policy. howard waltzman a former chief telecommunication counsel for the energy and commerce committee. gregg rothschild has the same position for the democrats and works on the senate side with telecommunication policy. thank you for being with us. both guests are currently lawyers who practice telecommunications law also tony rahm as our guest reporter from "politico." with a general question we will start with howard waltzman if republicans take over congress, house, and/or send an what are the things are the legislative policies they may pursue and where will they concentrate their efforts with tele-communications? >> policies as well as our tsai a inventory of the

second ntia are doing and policy outstanding to evaluate the commission as well as teetwo proceedings on spectrum also net neutrality and i would expect the republicans to take a hard look where things stand with the commission and asked for additional comment on and wireless service and where it intends to go. on the legislative side, you could have legislative reaction to what the commission may do with broadband reclassification and i expect a lot of activity on the spectrum front. there is talk of a spectrum crunch and the need for additional spectrum for commercial mobile services as well as a need for congress to act provide the

sec with the authority to have the incentive option. i expect republicans to be initiating that discussion at the beginning. >> host: gregg rothschild if democrats control one or both of the chambers and talk of revamping the telecommunications law, where do see them going? >> interesting question i do hope they control that leaves henry waxman remaining chairman and average expect him to continue his efforts to find a compromise on broadband regulation and in a honorable way he took on the issue over the past year and dot consensus and they decided they did not want to move forward at that time but he did yeoman's work to reach a compromise it will

likely to push that forward but of the senate side rockefeller is clear he considers spectrum to be a priority and has a proposal to allocate a spectrum band long been sought by the public safety committee to build a network and with support of certain carriers he will look through that early in the next congress. >> no matter what happens next week there seems to be a consensus there is a lot of changes on the subcommittee in particular and those who seem to be vulnerable and others that have aspirations elsewhere with larger committees are subcommittees' outside of the energy and commerce umbro was so he told us that he felt that the subcommittee was probably the least likely to be impacted by a change so

within the republicans coming and coming do you think the subcommittee keeps the courage to partisan flair but more antagonism already issues you both identified like net neutrality? let's start with you. >> guest: going back to the-- when jack field and ed markey and fred upton. and then stearns and co was had a tradition of bipartisanship. when we were there together we worked on a number of issues together. there is the impetus to find common ground to move forward. >> host: but part of this election and in particular has been partisan and the last couple weeks do you see that changing with the new crop of candidates from the g.o.p. they could be more

polarized as the hot button issues are the key things they consider? >> historic day they are not polarizing issues or hot button issues. it is not polarizing like health care. when you look at spectrum issues or broadband deployment or even privacy privacy, none of these breakdown in a partisan manner. there are different approaches but not categorically different like there are from other policy areas. >> i agree. all of the bills that came the telecommunications all had democrat and republican sponsors even after the partisan elections in 2004 that subcommittee always worked in a bipartisan way with the one exception of broadband regulation that net neutrality which came to

the four back in 2006 as largely broke down along partisan lines and that is where a voucher for henry waxman on the subcommittee side and whoever is head of the republican side, i expect them to take very different viewpoints. been neutrality makes headlines everywhere but just before lawmakers went on their break we saw the beginnings of the compromise introduced by the full committee and it seems so republicans could have supported it but ultimately did not whether because of the timeline for the bill was introduced so quickly and no shortage of reasons alone. going forward, if the g.o.p. does take the house does that compromise comeback gourde does it never even broach the subject? >> guest: recognize a different approach and

motivation for many types of abroad point* regulation legislation. on the democrat side, a lot of the democrats believe there is a threat to the internet openness on the republican side in not believing it is a threat to the internet openness but i need for legislation or regulation as a system republican side stops the sec from regulating broadband services. that approach callers the entire debate. the motivation for doing it is based upon whether or not the sec will move forward.

>> where does that leave democrats? >> i agree. depending of what the sec does. and then reclassifies title to i would expect the congress republican nor democrat to work together to make sure there was a legislative strategy of place and certainly if the republicans take over unc investigations and more oversight in addition to legislation. >> does that force the sec to speed up or slow down reclassification if said g.o.p. retakes the house? >> guest: you could make an argument both ways. the chairman said he defers to a congress and what congress to act which makes

sense the telecommunications act was written for a single purpose network that does not exist today with multipurpose networks sadr digital. the chairman is looking to address that after the recent court decision and if he does clearly we will have reaction coming from the congress. i want to add what howard mentioned but if you look from may democrat republican side many do us support the decision with roughly 25% by write the letter saying don't go forward and that would be whether or not the democrats or republicans are in charge. >> does the sec wait for legislation? legislating is not a quick process and the greg and i could go on for a long time how the communications act needs to be updated especially with respect to the internet space.

is the sec going to wait until january or february or will let the patient and wait for congress to create the appropriate framework for internet services? not just a question if congress will enact legislation and the achieve consensus of both houses, by january or february, a lot of the public interest groups push the sec to act but i don't think republicans and feel the need for the haste of legislation they don't see the threat of the internet. >> once they takeover the subcommittee and who may be leaving, look for ways to constrain the sec with the broad band space? >> once again. >> but in a more limited role? >> that would have to be

legislatively. immediately see in gauging and oversight and you die awaiting what has the fcc done or planning on doing and putting together the action plan from there? there is immediate need for action. i would expect the republicans to act but if not the immediate need they will take more time to address the negative -- issue. >> of the broadband issue is opposed by 25 percent of democrats, how does this down? >> what is the extent of the fcc should be involved with internet network management. should prioritization be

possible what is possible with internet applications but it comes down to a regional issue because of lot of members are concerned what is a extent of the deployment and they're more concerned getting investment out there to have the best and services possible. what you saw with every house republican and 25% of house democrats say your way is the wrong approach because they are more concerned getting the best broadband services of the customers to make sure the deployment supports that they and they are of a potential threat in the futures. >> to add to that. what howard is referring to is the notion that members want to see the fcc get broadband to their districts

the. especially when jobs as such the important issue and they want to get economic growth in the district and they believe when the sec chairmen talking about the national broadband plan was a good step in that direction and reforming universal service to get broadband deeper into certain parts of america that don't have it today and looking at the recent occupation with net neutrality says that is not what we want you to do but to focus on broadband and i think democrats opposing the fcc proposal send the message to get back to basics. >> host: gregg rothschild what is the relationship three telecommunication committee and the fcc? is there a need? >> there has always been a lot of communication between

the chairman of the committee and subcommittee. fcc is a creature of the congress created by the congress when i worked for john dingell, ranking member, i he viewed similarly they should pay attention to the committee and those that hold the gavel both expect the fcc to be responsive to the wishes of the congress. >> guest: i always fall when i was on a committee staff as well for senator brown that there was a good dialogue with the second it was always open but sec commissioners or bureaus to give briefings, both republican and democrat led commissions. sometimes rely to a labor doing and sometimes they didn't and i felt there was a good healthy dialogue and they made themselves accessible.

. . but there was a poll that came out not long ago by the pew center that said lots of americans actually didn't want the fcc to play that much of a role at expanding broadband but health. some stakeholders said that maybe there was a misunderstanding of the question or maybe when voters hear of government and brought in the

enchanting government controlling the internet or something like that. i guess the question is in the gop controlled congress, what does the sec play an expanding broadband? does it take the lead can wait for congress, what relationship develops their? >> guest: one of the primary focuses of the next congress is getting spectrum out there and being a means to increase broadband, both deployment and subscribership. the fcc can only go so far right now. there are certain bands which they could to make available for commercial use, but there's a lot of bands they would like to make available for commercial use any congressional action before they can do so. i really see that i've been a focal point. i mean, the fcc started talking to congress and the unit i like that comport, the congress acting to ensure that more spectrum can be made available. >> host: do you foresee republicans being supportive of senator rockefeller's proposal and what about julius

genachowski's use of the whitespace's proposal? >> guest: well, i think republicans have come to different places on the whitespace's proposal. and it come down in different places on senator rockefeller's proposal. you know, certainly again, another example is sort of the bipartisanship on communications issues is waxman and barton had a bipartisan proposal for how to deal with the d block. it was different than the rockefeller proposal. so, i don't know that you will necessarily be embraced in the house on either side. >> host: i guess to follow-up on that, on the d block in particular which is what we're essentially talking about, the small chunk of spectrum to make a living either to public safety for them to build out or to be given to commercial carriers which can do the work in building it out and releasing the fact turnoff.

i've used that resulted in itself, gregg? d.c. republicans taking the path rockefeller did or working something similar to what waxman has given itself to. >> guest: this is broken down by house, not bipartisan. it will be interesting to see how it resolves itself. it seems as rockefeller has taken initiative in the senate and the ball seems to be in his core. i would expect him to the earlier on that issue and to set the agenda in the terms of the debate. shortly after the hearing i believe the ranking member of the senate commerce committee, senator hutchison from texas says positive things about the rockefeller proposal which means you might see a bipartisan bill which gives the d block to public safety and supports building the public safety network directions. >> host: are incentive options, one component of the rockefeller bill that would voluntary take spectrum broadcasters give up an auction it off for wireless use. is that an item that is universally supported? i haven't heard anybody on

either side saint incentive options are bad things. do you think that pumping up in the day no matter what happens? >> guest: sorry. i think the concept is there a lot of details you have to work out in terms of how much money to the existing, you know, to the existing licensees just get compensated to seize business? they get compensated to be relocated to a different band? so there are lots of issues involved and how you do the mechanics. but i think in general, using auction proceeds. look, the spectrum below three gigahertz is ideal for commercial mobile services. the spectrum below one gigahertz is even better because you got better propagation and you can build better towers. there's a lot of interest in making spectrum below one gigahertz for mobile spectrum use. if you replace existing licensees, there's some sort of wrenching decisions that have to be made about how you compensate

them and whether they're going to be in business in a different band. so i don't do gets cleared all were members will come down on any of those sorts of issues. but i think there's a real impetus to address that issue. >> guest: i was going to say you always start with the premise that nothing has prepared the notion of incentive options that are very topline has the support certainly the broadcast community and support of the wireless community. but there's a lot of questions. and howard and think with the most important one, where you can quickly see fisher start to develop among the parties or industries very, very quickly. it will be interesting to see how the debate plays out. >> host: mr. rothschild, the issue of online privacy has gotten a lot of press attention the last six months or so. how do you see that playing out? >> guest: is always the wild card in this issue area. so just observe i think 99 and correct me if i'm getting this

wrong, never congress when it's begun, chairman of one of the committees of jurisdiction has said this is the year were going to pass privacy legislation. in each year we spend time sunday. those are introduced and what i think what typically folks recognizes they get deeper into the debate is this a complicated ecosystem, there's ad networks, publishers, content providers, internet service providers. and what is grown up is this ecosystem where consumers benefit from a lot of internet content that is made available for free. and the reason is that is supported by advertising and advertising is becoming more valuable and able to support richer content because of the targeted nature of advertising. but it's also how the advertising becomes targeted, which is where consumers sometimes objects. and that's where the rub is. when members of congress are too dull in and start to write rules, they realize quickly they're going to affect that internet ecosystem and they're going to affect the consumer's experience and what consumers may not like.

and that issue, how that issue gets resolved and if it's able to be resolved will determine whether or not we have legislation in the next congress. >> host: but the noise, mr. waltzman around privacy has ramped up in the for six months or so. would you agree? >> guest: absolutely. the problem is people do more and more online, not just medicate, but social networks, purchase products, you know, as more and more of your information is sort of their online, it's more valuable to advertisers. and that come you know, for better or worse is the engine that drives the internet ecosystem. most applications or most websites are free. and they are free because as craig said, their advertisement driven. and so, the tug-of-war between people wanting to protect and keep confidential a lot of that information about what they're doing online versus, you know, sustaining the economic model of the internet, it's a very tough

dilemma. but i absolutely agree with you the noise -- every day "the wall street journal" series is a good example and there are other examples. you know, there is a lot of noise about customer -- not even just customer, just even people participating in social networks, having their information, including personally identifiable information being passed on to third parties and sold to advertisers. >> host: i guess the next question is as you said it sits on a figure not the right balance. does that leave the subcommittee or the full committee to have a wait-and-see approach to congress, seeing what the ftc and commerce to you for it moves on some of the legislative legwork, or does it take a more proactive role, you know, starting with the 112th starts off and the 111th left off with voucher and stearns and many other members have long been working on. and that's for both of you. >> guest: i think the issue

will have high-profile next congress and i think they'll certainly be hearing and members will begin to sort of debate what the best and be educated from witnesses on, you know, what the best approach is. i don't know that don't necessarily begin with where the current legislative drafts are, but i certainly think the issue is going to continue to be important and there's going to be continued to be focus off if there's going to be a federal comprehensive framework and the online space, which is that framework be? >> guest: we just saw the white house put together an interagency task force on this issue. we expect the chairman of the ftc to release his report very, very soon. that will influence the debate. you've had the private sector come together with a self-regulatory set of guidelines and policies which are just recently implemented. i think congress will get together in january and look at all that. there were certainly be hearings. we know were certain or be legislation introduced. the question will always be when the legislation starts to move.

do the members feel comfortable voting on that and do they really feel comfortable they understand the ramifications other? the most difficult thing -- often it's the most reason it's difficult to remove a telecommunications bill is members like to vote on things overly comfortable with the substance. and on the issue of privacy, because at the intricacies come again, the internet ecosystem that can go take a little while to get members ready to move legislation. >> host: gentlemen, verizon, at&t, comcast, facebook, microsoft, intel, cisco, just to name a few very large american companies. who do they want to be in charge? republicans or democrats? >> guest: i think you'd have to ask them. >> guest: i would agree with howard. i'd rather not say. >> host: next question. >> host: i guess i gets us into a little talk about what's happening with the subcommittee of full committee leadership. he's either been a drastic

change quickly for a number of candidates from shimkus to opt-in. at the full committee doesn't work out for stearns he may leave to go to veterans affairs and any other host of new and including walden who was on the committee gave up his spot. do you think those candidates -- and he can't speak to the individual that he said, do you think those candidates represent very strikingly different views on some of the issues we talked about? or do you see them all kind of been in similar camps, so much so that it is safe to say no matter which one of them takes up the subcommittee were going to see a slightly different role or the subcommittee. like as you said, policing the fcc, which had oversight role. >> host: just to further tony's question, does it matter if fred upton is chair of the energy commerce committee or joe barton or cliff stearns? >> guest: well, i think they all are going to be focused on broadband reclassification and spectrum. and you know, again, giving the noise on privacy, it's tough not to see how they'd be focused on

privacy. i think those are going to be the committee priorities. frankly, i think they're committee priorities whether republicans are in charge or democrats are in charge. i think it also certainly is regardless of who is in charge of that committee. you know, those are the sort of pipe and issues. those are likely to be the priorities. >> host: just to follow up on that really quickly, what should we expect to see if it didn't, was widely leaked to be in the upbringing for the full committee in terms of a telecom rewrite? aucoin said things to think of to lead a full committee will lead to? >> guest: well, he's already talked about -- i think you outbid recently in the "washington times" talking about concern about regulation and engaging in oversight. i think we'll see a lot of oversight with the fcc, of the btop program come everything sorted within that jurisdiction. but you know, upton participate -- upton and burton

participated in sort of the last time that a comprehensive rewrite, which was in 96 and dingell and markey participated in that as well. he's gotten his feet wet with respect to a broad rewrite of the communications that. and so, again, that's not an easy task. it's not a quick task. but that is something he does have familiarity with. >> host: gregg rothschild, as mr. waxman maintains or retains his chairmanship, where do you see us focus? particularly when it comes to rewriting of the telecom -- and >> guest: sure, as you both know he spent the last two months of the last congress -- actually the present congress attempting to gain some kind of consensus around the issue of broadband regulation. i think assuming he maintains the chairmanship, he'll try to continue those negotiations, work with republicans on the committee, work with the industry, work with and the

democrat and republican party twitchy that consensus and to give the ftc clear direction on broadband regulation. on the senate side, senator rockefeller obviously has been following the issue closely and was involved in stakeholder meetings on the subject. he seems more targeted than focusing on the spectrum question, particularly on allocating spectrum to public safety to get a public safety network out as quickly as possible. and using funding from auctions to support the building of that network. >> host: and we have to leave it there. thank you both former lead counsels for the telecommunications committee. gregg rothschild howard waltzman, republican and gregg rothschild, democrat. tony romm. thank you for one. >> host: thank you. just go thank you. >> in a few moments, the midcourt circuit appeals hears a

>> the ninth circuit court of appeals heard arguments today on the constitutionality of an arizona state law that requires the police to detain and arrest suspected illegal immigrants based on reasonable suspicion. a lower court ruled that arizona had preempted the federal government's authority to set immigration law and blocked enforcement of that part of the state law. this is a little more than an hour. >> all rise. hear ye, hear ye the honorable

united states court of appeals court of appeals for the ninth circuit. you will be heard. please be seated. >> good morning, everyone.case n we're going to take up the first case that, calendar.. the and that is the united states of iz america versus state of arizona. and we allotted 30 minutes per side. the appellant -- at the appellant wishes to stay somejut time for rebuttal, that's perfectly time. down. with that, a reminder, we're ready to begin. does the state of arizona --

>> good morning. i'm john bouma. i represent the state of arizona and governor january brewer who is with us in court today. i'd like to try to reserve five minutes for rebuttal. >> that's fine. >> your honor, arizona is trying to deal with the problems that arise from a federal immigration system that even president obama acknowledges is broken. arizona is a border state, and it's on the very front lines and there's serious crimes that are involved in the drug trafficking, the human trafficking, human smuggling, and the other activities, the coyotes who thrive because once an illegal alien is in the

united states, the chances of removal are so low that basically crossing the border is same as crossing the finish line. with a federal government that's been unable or unwilling to solve the problem, arizona passed the public policy whereby they wish the arizona law enforcement officers to assist in the imputation and enforcement of federal immigration law to the maximum extent permitted by federal law. the district judge apparently deciding that arizona law enforcement officers would forget their training or experience or the constitution and act in an unconstitutional manner has enter in an injunction that basically preserves the status quo, and that status quo is simply

unacceptable. >> the district court focused on four provisions; correct? >> yes, sir. >> that's all that's at issue here. >> what's that? >> we're just focusing on that. >> yes, sir. >> mr. bouma, forget the arguments you would address to the legislature. tell us how the judge was wrong own each four if you would, please. >> okay. with respect to -- i think we first start with the proposition that this is a facial challenge, and she mentioned the challenge, the standard for that challenge principally that is no set of circumstances exist under which the statute would be valid. put another way with respect to each of the sections challenged that is unconstitutional in

every conceivable application. >> let me ask you this. you mentioned solerno. is that principle somewhat intentioned with the government's argument here that these provisions are preempted completely? >> these provisions are not preempted completely. they -- in every instance comply with a congressional objectives and not a one of them that does not comply with obvious jexes and do not conflict and can comply with state and federal law in each particular instance, and none stand as an obvious -- obstacle to the full objectives of congress. there's no expressed preemption. it's just field preemption which is the field of immigration which basically decide who

should and should not be admitted into the country and the circumstances under which a legal entrance should remain, and decanis tells us the rest of this is under the police power and that every regulation of aliens is not a regulation of immigration, and so we're back to the proposition there's no expressed preemption. >> tailor that argument to section three. >> with respect to section three. >> the registration. >> yes, sir. arizona passed a set of standards or laws essentially the same as the federal law, 1304 and 1306 saying if you're in violation of that, you're in violation of state law. now, that is consistent with congressional objectives certainly. the fact that the administration doesn't choose to enforce them

shouldn't mean that congress doesn't want them enforced, particularly when you look at what congress has done all the way in encouraging state and local officials to assist congress and if you look at section 13, on that point in hinds the supreme court said that pennsylvania adding as a misdemeanor the failure to register under pennsylvania's act was treading in federal ground. we have under section 1304 and 1306 a well detailed and regulated policy of what documents immigrants or aliens should carry in this country under the federal statute. what arizona is saying is that's fine, but if you don't carry those, we're going to put you in jail for up to a year or fine

you. isn't that so? >> your honor, i think the arizona statute has lesser penalties than the federal. it goes 30 or 60 days. >> okay. even 30 or 60 days for a demeanor. >> congress has stiffer penalties than arizona does. all arizona does is comply with the rules. >> is it your argument that is state can take a look whether the federal government is enforcing its laws and if the federal government is not enforcing its laws, it can enforce the laws for the federal government? for instance, if i don't pay my income tax, can california come along and sue me for not paying my income tax? >> well, i don't think california would be interested in forcing the income tax, but california is certainly interested in seeing that the people within its border comply with the rules because arizona's

bearing the brunt of the federal government's failure to enforce it. you mentioned hins. that's a conflict cay. it did not say there's no room for the states to work in this particular area. as a matter of fact, there's a particular paragraph in heinz that says the concept whether this is in the realm of both is specifically reserved, so it's the heinz conflict case and the scheme was with the government scheme. this is not totally at odds with the government scheme. this is doing what congress says. the fact that the administration won't enforce what congress says doesn't mean arizona should have to bear the brunt of it. how do they come in and claim preemption by we're in the field, but not doing much about it? we choose not to enforce it.

>> how about section 2? >> section 2 is a provocation of what people are already doing, and almost every jurisdiction they do it on a discretionary basis. they investigate suspected illegal aliens. all the duty does is quantify what both the united states and the district essentially said is constitutionally permissible. >> let me ask you this question. it seems to me reasonable for them to ascertain the status of the person they're after, and ascertain it from a federal source, but there is al the provision that in the case of an arrest, the person will not be released until that status is

determined. now, i don't know any provision in federal law that goes that far, and suspect that getting into -- isn't that getting into federal territory? >> the provision that you're talking about which is the second sentence we think has to be construed to be inconsistent with the first, third, and fourth sentences of that paragraph at which point the only people who are investigated are those who there's a reasonable suspicion on alien -- >> no, that's fine, but no, my question -- i think i want to focus on shall not be released until it's determined. >> yes, and that's -- that can only be determined in the context of the 4th amendment. >> yes, i understand all that, but how can we construe it so the detention does not exceed

what would be the federal law? >> the statute specifically contains the provision and basically i can tell you it says that it will be construed in accordance with federal immigration law then to preserve the constitutional right of all persons and the privileges and immunities of the united states citizens. that's part of 2b. it means it incorporates the 4th amendment standards. >> all right. let's suppose a citizen arrest would reasonable belief that they've committed a felony, and then they post bail, and they are able to get out, but then the statute says, no, you don't get out until your immigration status is determined. how do you reconcile that?

>> ordinarily if they go to jail, someone is going to determine the immigration state because it requires much -- >> no, no, i can see that, and often that will be done, but this is an absolute statement, shall not be released until it is determined, and they're on bail, but then the statute kicks in, doesn't it and says they shouldn't be released? >> well, if you take the other provision, you have to go as far as the 4th amendment allows it and turn them loose. if you can't determine within a reasonable time what their immigration status is, that statute specifically provide that you have to turn them loose under the provision of being consistent with the constitutional rights of all persons. >> mr. bouma, suspect it true if the -- isn't it true if the immigration service picks up an illegal

alien, and we're in the process of determines whether he was legal or not, the statute requires him to be presented to an officer within the shortest time possible to be admitted a bail. >> yes. >> what would happen here? >> i think the idea is to follow the usual procedures. we have reasonable suspicion. the next thing you need is probably cause, and then the next thing you have to do is let them go if you can't identify them. >> on bail? >> on bail or otherwise. >> would you clarify for me, there's some debate between the parties just about how sentence one and two are to be interpreted. i'm just curious about how you envision the statute working for the officer in the field. >> well, in the first place, officers -- i'll just start with the proposition that officers

certainly understand the concepts of reasonable suspicion, and probably cause and the stops and how long you can keep somebody, so then the statute, the second sentence has to be construed only with respect to those about whom there's a reasonable suspicion, and that's consistent with the first sentence in the third and fourth sentences. secondly, you know, i think the court failed to apply three principles here with respect to the section. one is to interpret a statute in a constitutional manner. two, interpret it so it's sensible without an absurd result, and third is have it be consistent with the legislative intent. the legislative intent is to deal with illegal aliens. you know, arizona has a long tradition of hispanic

population, nobody's trying to -- >> to follow-up on your response, the statute goes on to provide that if a person is detained and produces a document like on arizona driver's license, that's a presumption they're here legally, but in the case the judge was pointing out, what happens if they produce a valid driver's license and the statute still has to verify they're here legally? >> no. >> that's it? if they have a driver's license, that's it? >> right. >> they don't have to comply with the other statute. it's all over? >> correct. the current status doesn't give you that -- >> that doesn't seem to be what the statute says though. >> sir? >> that doesn't seem to be what the statute says though. >> it does. if they have a driver's license it's presumption as being taken care of and they're gone. if you go back to the concepts

that the statute is intending to deal with illegal aliens that there is illegal aliens we're talking about and if you try to interpret it the way that either the government or district court did -- >> then answer this part of the question. >> okay. >> it doesn't say it is conclusively presumed to not be an alien by the presentation of an arizona driver's license. it says a person is presumed not to be an alien, a presumption that can be rebutted by a conversation between the officer and the alien which indicates reasonable suspicion that he has not an alien or an men citizen. you can see that. >> you're absolutely right. as a matter of fact, very often in practice the first thing the alien tells them is he's not a citizen, and that takes care of the reasonable suspicion

usually. >> if we were to interpret the statute in the way that is constitutional -- [no audio] >> yes, it would. >> address two others that the district court -- >> yes, sir. i'll talk about five. >> whatever one you want to begin with. >> it's the issue of whether you can, whether you can make criminal penalties for being employed, to attach a penalty for -- people who are unauthorized to work, to penalize them as a way to discourage the men from

working. that is clearly consistent with congressional intent, the reason they are unauthorized workers is congress made it clear that they're not supposed to be working. congress has chosen to first try to deal with it from the employer's stand point, and in that particular instance did put in an expressed preemption provision, but it was a partial expressed preemption with respect to employers, and they didn't put it in with respect to employees nor is it clear if you look at the statute or anything congress has done is there any clear manifested intent to preefferent the area of

employees. this is a problem because, you know, -- >> i'll tell you what the problem is, mr. bouma, is your argument is something that is foreclosured to us. judge ferguson found and wrote that the congressional intention was not to punish employees. now, right or wrong, this three-judge panel must follow that rule. we are not an em bank panel. tell me why judge ferguson's opinion in national center does not bind this court. >> well, judge ferguson's opinion, and that is one to the legislative intent and to determine the legislative intent, he looked at the hearing that consistented of a five-person committee, three of whom were present, and from

that, he designed the legislative intent, and that seems a long way from being clearer and manifested -- >> let us suppose i stipulated the fact that mr. -- that judge ferguson was absolutely wrong. i agree with you let's say. i don't, but -- [laughter] i say i agree with you. how does a three-judge panel of the 9th circuit overrule another 3-judge panel of the 9th circuit on what the legislative intent was? judge ferguson found the legislative intent on a bail order of an immigrant of an alien which said that he couldn't work during the period of time of bail to be inconsistent with the legislative intent which was not to punish workers while they

were awaiting their asylum hearings or other proceedings on immigration, but to let them work and earn money to feed themselves and other charges. that was his idea. now, judge ferguson, rest in peace, may have been wrong, but how can we turn that around and agree with you? >> i think you are in a position should you decide to decide that it was simply wrong. >> well, our -- we aren't allowed to do that. we're bound by the prior three-judge panel. if there's a change in the supreme court or by a statute -- the case poses some problem to you with respect to section 5.

how about the final section before your time runs out. you might want to address section five. >> okay. with respect to section vi, that is a provision that is consistent with a federal statute, 1252c. it permits an arizona law enforcement offers to write the law unless somebody is removable from the country, and the idea of that is to permit arizona law enforcement officers to work with them and hold suspects when ice tells them they want them held for people who have been removed, convicted of a crime or a public offense and who have been removed -- >> doesn't this statute pose the same problem with respect to

arrest and detention? >> i don't believe it does, sir. >> why not? >> well, this is somebody once held and somebody who committed a federal offense and has been removed or returned to the country. they are here illegally and there is subject to arrest and detention. >> excuse me. it's not restricted to the -- >> but that's an example. somebody who has not gone or somebody who has gone and returned. either one would apply. they are both clearly national crime information center check, and they find that he was convicted, sentenced, served his term for second degree murder, and is free. your arizona policeman can

arrest him because he's removable. >> that's right. >> because of the ina? >> that's right. >> the judge made it appear very complicated about who is removable and who is not. >> it may be clear in some cases like murder or bank robbery or sexual abuse of a minor which is cause for removal even if the sentence was served, this is a fasal challenge, isn't it? >> clearly the ice maintains a data base of people who have been removed and a data base of those convicted of those crimes. >> hasn't the federal government through very elaborate scheme established a lengthy process for determines whether somebody is removable or not?

>> there's a -- >> there's a lengthy process. nothing you can call whether somebody committed a crime. there's some obvious ones that judge alluded to, but some aren't. >> whether a particular afns -- offense is a serious felony. >> justice stephens made it clear there's a whole lot of areas that it's clear, but i guess the main point is this is a fasal challenge and that's the main point with respect to each of these. there are certainly circumstances in which it can be applied in a constitutional manner. it is not all -- it is not unconstitutional in every conceivable aspect. >> i'm still trying to understand how this statute works. that is an officer determines by running a data check that somebody is convicted of, i

don't know, second degree murder or whatever crime you want to pin point, they arrest him without a warrant, they take him into custody, and what do they hold him for? >> before they arrest him, they id him. they have to have a lawful stop or detention and then they have to have a reasonable suspicion. now they checked, found out who the individual is, and that's important because until they do that, neither ice nor they who they have. it's a theory of congress and clear communication with ice because you don't know who you got. you can't catch them unless you know about them. they reported that, and now they both know who they have. ice says we want to hold him. >> we don't know -- >> i'm sorry?

>> we don't know this is a removable office. >> then if you're going to talk about people acting in a constitution flail manner and -- manner and get back to the fact you assume they will and secondly this is only a facial challenge and there are constitutional applications, this can be applied in a constitutional manner and assume the police officer lets that go. >> how long does icef have to get back? 24 hours, 48 hours, a week? >> i think you're talking about reasonable suspicion or probably cause is 24 hours in both. the truth of it is look at the experience and statements submitted, they get an answer back within 11 minutes. >> okay. all right. i'm passed my -- >> do you want us to construe the statutes of you can only have the arizona asks for a ruling?

>> i don't think it's the only time it might happen because as i said there's some relatively clear things. they could perhaps arrest him, but the concept is basically to provide the authority that is required if you're going to have the statute, 1252c, that needs authority. there may be authority, we don't know. this is to clarify that. i'm past my time. thank you. >> thank you, counsel. >> good morning, and it please the court, edwin kneedler for the united states. before discussing the provisions at issue here, i want to layout the constitutional structure and preemption provisions that govern the provisions. the constitution of the united

states, that's the subject matter of immigration in the national government -- >> no. national government, no, in congress. >> in congress. >> there's a difference between national government and congress. >> well, congress in the enacment and the executive branch in the execution of the law under article ii and the interfeengs of the execution of the law -- >> as long as it's done fairly and well. >> yes. and this is because the subject matter of immigration which is the treatment of foreign nationals within our borders is a core aspect of foreign relations and one of the purposes for the adoption of the constitution was a concern that individual states would embroil the entire nation in disputes with other countries, and it's important not to allow for a patchwork of state laws, but rather for the nation to speak with one voice, and in this context it's particularly important to protect the right

of the u.s. citizens abroad if their treatment. >> has there been any adverse foreign relations since the year 2007 when the state of new jersey adopted by order, not by statute, a similar requirement to its police force that anyone who was stopped for an indictable crime or drunk driving should have his immigration status checked? >> well, i'm not aware of a level of dissatisfaction or concern that has arisen now. >> secondly, how about the same rule in rhode island? has that led to our foreign relations being deteriorated as a result of checking immigration status? >> there have been concerns expressed in recent years. >> in rhode island or new jersey

or just arizona? >> the -- the deck collar ration explains this particular rule brought to the floor a broader concern, concern that is applicable to law. >> does any other state in new jersey, pennsylvania, or nevada or any other state ever issue a declaration that the legislature declared that the intent of the about is to make attrition through enforcement the public policy of all state and local government agencies in arizona? >> no, and i think that's an important point. this is an extraordinary state statute that has additional criminal penalties added on top of those adopted by congress and a mandatory check with dhs any time there is a stop and reasonable suspicion. section i of the act describes these precisions are designed to work together to have enforcement and adopt the public

policy of the state of arizona that is independent and outside the control of congress and or out of the control of the national government. >> that's part of the statute? >> pardon me? >> does it say they operate outside of the control? don't put words into the statute. >> i'm -- i'm -- but -- >> it's statutory. >> it's a consequence of what happens. if i could explain -- >> no, i'm well aware of this. concentrate on the provisions that -- >> i would like to switch to section iii in particular which establishes a state crime for failure to register or carry a registration card as required by the federal criminal statutes, but it only applies to people who are unlawfully present in the united states, so in effect criminal law is an unlawful presence. those prosecutions are brought by the state, not to the control of the united states government.

that's preempted for three reasons. it's a direct regulation of and part of the direct regulation of immigration. it follows the states in position of criminal sanctions over and above and on top of those same state prohibitions are themselves are preempted. >> you don't have to spend a great deal of time on section iii. >> okay. i do want to make the point though the other provisions were designed to work together with section iii so if there was a stop -- >> arizona does nothing more than to complement the federal scheme. >> the scream court said that the registration was an issue there and this is built on top

of that. those occupy the field and the court said a state may not add on regulations and punishments on top of that. we think it's exactly that. there's conflict preemption here because it legalizes presence here in the united states because it only applies to people who are unlawfully present. as we explained in the brief it is contrary to the policy of the united states in statutes and consistent with international practice not to criminalize mere presence in the united states, and so for all of those reasons, we think that that section iii is preempletted because it is direct regulation of immigration. if i -- if i might unless the courthouse has further questions on section iii, i could switch to section v of the statute -- >> that's fine. >> the employment of provision.

with respect to section v as the court pointed out, this court's decision ?t national immigrant rights case did analyze the backdrop in the enactment of the federal prohibition of the employer sanctioned provision and recognize that congress considered and deliberately rejemghted the possibility of imposing sanctions -- >> i think you heard the judge, it's commonground. we a bound by that decision in the argument. >> yes. >> do you need more? >> if i could just add one point on that on section v. >> do you have to do it? [laughter] >> i feel ruly. >> i'd like to underscore one point why the court is correct in its evaluation, and it's just

not a registration history point which the court addressed in the ncir case, and that point is that the 13 and 24a of the federal act has specific prohibition requiring an individual employer to attest he has lawfully present and authorized to work and there's criminal sanctions in the federal act for violating that provision. significantly, there's another provision in 1324a that says the station that the individual employee makes may not be used for any purpose except to enforce the federal statute, and to us that, that clearly shows that congress contemplated that the employee's involvement and the connection with applying for employment could only lead to federal consequences and that there would be no state consequences. that's the point that was not made in the ncir.

it's a textual point. >> if there's a declare ration, the state in which that perjury is commitmented, the state cannot prosecute him? >> i believe that is probably correct. to putting that to one side, it can't make the employment itself unlawful. whrrnt -- >> why do you believe a state could not prosecute a perjury committed on a federal document? >> well -- well, if it's -- if it's regulating perjury against the united states in the same way that section iii is preempted, so would that be. it's not up to a state to prosecute false statements to the federal government. >> do you have any authority for that? >> the supreme's court decision in the buckman case a case involve the with the fda and the supreme court said the

relationship in the context of fraud within the federal agency and those whom it regulates is a matter to be addressed by the federal government, and the state could not create a civil cause of action for fraud, and again, there's no need for the court to decide that here, but -- >> i'm not talking about a civil cause of action. i'm talking about a criminal penalty for perjury. >> well, but again, if the question is whether the state would have authority over the subject matter whether it's criminal or civil means, we don't think would -- >> is there a case you have in mind where the state is found not to have ability to prosecute somebody who perjury themselves to the federal government in >> i'm not aware of a specific case, but again, that relationship would ordinarily be governed by federal law, so i addressed the two criminal provisions that the state grafted on top of the federal scheme, and now i'd like to turn to section 2 be of the act.

>> as you talk about section 2b, i'm interested in how the house fits into the scheme. >> we believe this is preempted on its face, and we believe, and let me explain why. i think it's consistent with the solerno stipulation. >> you stipulate this is a facial challenge. >> yes, it is. we believe this provision is unconstitutional in every application. what we object to and preempted in this context is the mandatory nature of the requirement. we do not question the authority of the state in a state law enforcement officer for example in the course of an ordinary stop or either traffic stop or stopping someone on the sidewalk to question someone about his

identity, about his status and check with ins or excuse me, dhs because indeed federal officials rely often upon information and glean from state and local law enforcement. what is problematic about this is the mandatory nature of it because what the state has done is to harness the federal enforcement apparatus in aid of the separately constituted state mandatory criminal enforcement approach to the immigration laws. >> let me ask you if that's the theme of your brief, but why -- isn't congress capable of saying no? if this is a burden -- >> congress, congress, congress could, but we think congress had already said no. >> well -- >> let me -- >> is there anything in the statute? >> that's interesting. >> well, yes, there is. we think where it is manifested

most clearly is in the provision of the act in section 287g or 1357g of title a, and the first nine sections of that provision and this was enacted in 1996, established a mechanism under which dhs can enter into a cooperative law enforcement agreement where the state and local law enforcement or correctional agency and under that provision the state officers may exercise authorities of ice officers including doing checks in appropriate circumstances, but the act makes clear whether it's an agreement like that the state and local officers have to act under the supervision of officers and have to follow the priorities in terms of law

enforcement. >> under g10 it says no -- not with standing. no provision of this act will stop the -- nothing in the subsection shall be construed to require an agreement under this subsection in order for any officer or employee of the state or political subdivision of the state to communicate with the attorney general regarding the immigration status of any individual including reporting knowledge that a particular person is not lawfully present in the united states or otherwise to cooperate with the attorney general in the identification, apprehension, detention, or removal of aliens not lawfully frent in the united states. so 287g officers are under the ag, but under g10, this doesn't stop regular officers from doing exactly what i've read.

>> our position is not that they're not authorized to. our objection is that the state statutes mandates it. >> they can state how they want to use their people, right? >> i don't think so with all do with respect. an greermt is not required for state officers to cooperate, but the important language is cooperate with the attorney general. .. utilized law enforcement officers to assist a second sovereign, i think the background understanding would be it's the second sovereign whose laws are enforced who takes the lead and the other officer here, the officers of arizona is assisting the second sovereign of the united states. >> that's nice and well as subsection be, but listen again. to communicate with the attorney general with regard to the immigration status, it doesn't say communicate when the tone

-- attorney general wants you to communicate. this is a right under the federal statute for theoca >> this is for the people to communicate with the attorney general. >> >> this is demonstrated by the text, paragraph a says to communicate with the attorney general, and then b says otherwise cooperate >> beside communicating? >> well, the otherwise to cooperate, the otherwise refers back to a, the communication is part of the cooperative relationship between the state and the federal government. >> isn't the obligation of the federal government made very clear by sections 1373c, 8usc1373c which is entitled obligation to respond to inquiries. the immigration naturalization

shfs shall, mandatory word refer to state or local agencies seeking to verify or asker tin citizenship or status of an individual, ect., ect., ect.. it doesn't say when we want to or in our discretion. it doesn't say when we have funds available. it says shall. >> our point doesn't turn on the response that dhs makes. it turns on the conduct of the state and local police officers who would be by hypothesis are making inquiries of the alien before we even get to what would be submitted. they would be stopping someone and prolonging that stop by hypothesis and circumstances that they might not otherwise do it. in the absence of the -- >> they might not do it or they might do it, and this is a challenge. you got to prove that every time

they would stop someone, that would be an unconstitutional stop. >> no, no, our burden is to show that every time the mandatory application is impermissible because it takes away the discretion of the local law enforcement offer -- officer whether to pursue a local line of industry rather than mandate. >> what about the first section of issue 2. if it's practicable and won't interfere with the investigation, then you can request the immigration status. >> this those circumstances it's mandatory and those parts of the first sentence do not provide for the state or local officer to take into account federal priorities. the only thing that can be taken into account are the state or local law enforcement's priorities. >> what priorities? >> as we explained in our brief,

the secretary of homeland security has established priorities. for example, in the enforcement of the immigration act -- >> there can be no priority established under ice in responding to the obligation to respond to inquiries. >> yeah, what i'm -- what i'm describes here doesn't go to the response to the inquiry, but to the conduct by the police officer who he encounters someone on the beat in the neighborhood or stopping a car. what does that -- >> you want him to say what would the feds do in this case? >> no. i think what we would want him to say is what would i do if left to my own law enforcement judgment knowing what the feds approach is with respect to particular problems. >> they're told what to do. they've been told by the arizona legislature and governor what to do which is if you have reasonable suspicion, if it's

practicable, if it won't interfere with the investigation, run an immigration check. it takes 11 minutes according to the last speaker. >> and, again, our problem is that the state has mandated it. >> let me get in here. before arizona passed this statute, this provision, i'm noticing no cooperative agreement. could the sheriff of a local county say to his officers whenever you make a stop and you think there's reasonable suspicion, you run a check with ins. >> i think that would present the same problem. >> why? it's not mandatory. the state didn't say it's mapped toir. >> the sheriff has. if the sheriff adopts a policy and for these purposes and others a poll city by -- a policy by the sheriff on

matters being conducted would be the force of law binding the officers who work for him. >> it's just, you no, the sheriff has decided in his discretion of running his department and directing his officers. >> in that situation where the -- it's not solely the sheriff's concern when it comes to the enforcement of federal immigration law. >> suppose the sheriff has an issue to the policy statements and the officer say i made a stop and i'm going to call. i'm going to check. what's wrong with that? >> well, you know, at some point, you know, at some point what an individual officer does may not rise to the level of the legal problem, but even in the case of an individual officer if there was an issue, that would be worked out in the cooperative relationship between the federal officers and the state. >> i don't understand why an officer couldn't, independent of this law and in the light of the

existing federal law we've been talking about. couldn't he talk about a particular person he's detained? >> he certainly can, but let me -- >> it seems to be permissible. >> it is, but there's another aspect of the state schultz here which we think is important no gander scoring what arizona is accomplishing which is the private right of action. >> no, let's not get away from this point. i read your brief, i read the district court, and i had a change in the two follies, and i don't understand your argument. you know, we are dependent as a court on counsel being responsive, focusing, trying to help us, not go down just fall like soldiers in defense of some position that is unfolded. you keep saying that the problem that a state officer is told to

do something. that's not a matter of preemption. if the federal government wants a preemptive field, congress can say so. we cut off communications. we don't want to have this information sought, but it hasn't done so. it's made clear to you it has not done so, and the, i would think the proper position would be to concede that this is a point where you don't have an argument. >> now with respect we do believe we have an argument, and if i could make two other points that we think critically underscore that. first of all, the mandatory section of 2 be is coupled with the right of action that provides any citizen of the state, not just the sheriff running the department, but any citizen of the state can bring a private right of action if there is a policy of not enforcing the

state -- excuse me, the immigration laws to the maximum extefnt possible. this builds a powerful inacceptabilityive for a state or local officer to pursue questioning and circumstances which ordinary law enforcement would not call for. the state singled out this one subject matter of immigration for this extraordinary mandatory requirement, a subject matter that is exclusively a federal malter in its prosecution and enforce. want the other thing that is extraordinary about this is it's geared to the reasonable suspicion standard. that is a familiar standard, but a familiar standard in terms of authorizing or permits law enforcement. it is a purposely low standard, far lower than probable cause, but it depends daily on the independent judgment of law enforcement in the field often not exercising that power to the hilt because of the recognition

that maybe they should be applying a standard somewhat above this. this standard is transposed from what was a permissive authorization and every time a state or local officer encounters someone on a beat and all the circumstances might lead to a judgment that there's reasonable suspicion that that person is unlawfully here. that officer must pursue the matter and ask questions when the officer would not otherwise -- >> would it be similarly permissible if the state of arizona say every time you stop or detain or arrest a person, you have to check him with the national crimes center to see if there's any outstanding warrants? >> that is a regular part of police -- >> or every time we stop a person you have to take his fingerprints. anything wrong with that in >> no, but in that circumstance, the state is regulating its own

state law enforcement. if the state wants to say every time -- >> not necessarily. . if the national center has outstanding warrants in the state of california, that's not on arizona crime. >> no, that's the information the officer find, but in terms of pursuing the ncic the state singled out immigration saying you will pursue immigration in a way you won't pursue any other state or federal responsibility. >> there's no interest in seeing that illegal aliens are removed from the state of arizona even though many of them are also criminals? >> the state certainly has an interest in that, but it's important to focus on the fact that the encounter between the local law enforcement officer may be on the street or in the school with a student who's been in a fight, and the officer may have had suspicion that the student in school might be

unlawfully present, all the sudden this law requires that that accident be pursued by the officer, but all of that is geared not towards something that the state can do. the state cannot remove the person or prosecute the person. it is all an intake for ultimate federal enforcement of the law. >> but the state can deliver an illegal alien over to the federal officials, and that may result in that person being removed from arizona. >> but in the field, the cooperative relationship against which all federal state cooperation law enforcement works is there's communication about that. before the person would be brought to ic, there would be communication between the local law enforcement officer and ice saying what do you want me to do in this circumstance. what this provision does, 2b does, is stand as an obstacle to

the cooperative relationship between the states and federal government because it creates a state enforcement priority and a state mandatory enforcement approach backed by this private right of action and gears in an unprecedented way to the use of the reasonable suspicion standard which, as i said, has always been one to authorize but not used in this way to compel law enforcement officers, and the cons consequences -- >> your time is rapidly decreasing here, and i'd like you to respond to the arguments with respect to section vi. >> okay. with respect to section vi, it presents the problems that the.com court -- the district court identified. as the district court pointed out, the section vi the parties agreed in the lower court is geared to the situation where the crime is committed outside the state of arizona because there is an authority inside the

state of arizona to make a warrant for arrest. >> not if that person served a sentence. arizona couldn't allow a warrant less airings. this section does allow that. >> that's true, but that's not a justification put forward in the lower court. >> a justification the district court talked about in this opinion. >> she note ited, but the parties didn't address it, and if that's a justification, that can be considered. this is just a preliminary injunction stage. that can be considered by the court. >> if you're likely to win, and if that situation were considered, you would be likely to lose. >> no, i think it continues to present the problems that the court identified because there's no requirement in section vi that the state or local officer contacted in order to find out whether an offense is removable. the officer would have to make a judgment as to whether the

public defense in the other state was also a public defense in arizona and then determine whether it would in turn lead to a removal -- >> but the response is like judge suggested earlier is second degree murder. >> well, in that situation, it would probably, you know, it would probably be possible to make that determination. >> then why don't you have a solerno problem with respect to section vi? >> i don't think so because there's no requirement to check with ic first of all and the ina by responsibility for making removability determinations in the federal government. there may be some situations in which something could be done otherwise. if i could just make a final point about -- >> you pretty much conceding that the good work -- >> no, we believe there's some circumstance in which it could, but that should be sorted out on reman. if i could just again come back

to -- >> yeah, but is that a concession? >> pardon me? >> is that a concession? >> well, it's not written in a way that takes account of those circumstances. if it was written in a way that required that ic be consulted before the conduct was taken, after all the statute focuses only on aliens, and that's the concern. if it was wrirn in a way that wriered that trigger, it would be different, but it's not. >> could it be construed that way? >> pardon? >> could it be con trued that way? >> it's not a question of construing. >> you heard the counsel say arizona seems willing to accept a construction with that. >> well, i think that's on -- they discussed that in 2b and in 6 there's no language that could be read into the statute or construed to require prior checking with ice. >> look at the statute as a

whole. the whole process is to compliewn kate with the federal government. -- communicate with the federal government. >> but there's no requirement that that be done before the local officer make a judgment on its own, and that's contrary to the general cooperative law enforcement. if i could just return to 2b for a moment because my time is -- >> yeah, one minute make your point and that's it. >> i just wanted to say the arizona statute here with its extraordinary mandatory investigation have to be considered in the light if every state in the yiewn did this. the united states nation as a whole is responsible to other nations for the ways in which their citizens are treated within the united states. if every state did this, we would have a patchwork of laws and circuit decisions which struck down a similar law concluded and it's also important that the supreme court recognizes how a statute like

this can affect lawful permanent residents and dtses because another factor is to respect the liberties and not subject people to police surveillance. this statute based on reasonable suspicion raises that concern very profoundly. >> thank you. >> just a few quick points. >> sure. >> if this is about reasonable, minimal test of suspicion, you know, ins lopez took care of that. the ins lopez mendrk oza. the supreme court said that reasonable suspicion was a

sufficient standard to protect those lawfully within the country, so it's been a time honored standard. i don't know how suddenly it becomes so minimal. secondly, it's pure speculation, and again we're talking about facial challenge here, but it's pure speculation that police officers are now going to check out people that they otherwise wouldn't have checked out in their discretion. the idea of this statute is to prevent those people who have previously been subject to city policies to make those checks. the third thing -- >> it does say a reasonable attempt shall be made. in section 2. it does say shall. >> we encourage them to do it. we got to know who is there. >> that's a generous reading of shall. [laughter] >> thirdly, it is -- >> i'll take it. >> sorry? >> i'll take it.

[laughter] >> thirdly, you mentioned the national center case, and i have to look at it during the argument a little bit. i guess the point i emphasize is that that particular case addresses whether dhs had the authority to enact those regulations. it did not address the subject of whether the states in the exercise of their police power has indicated by decanis and other cases could address that particular subject, and the national center case also failed to apply the presumption against preemption of state law. they were dealing -- >> mr. bouma, if judge ferguson analyzed the congressional intent as to whether to punish

employees as a condition of bonding them out; right? >> yes, sir. >> why is it that general premise what the intent of congress was appliable not only when dhs does it, but when the state does it? >> well, dhs doesn't have any police powers to begin with. secondly -- >> we're dealing now with the intent of congress. if the intent of congress is found to be black by judge ferguson, just because it's in one room or another room, dhs or the state, doesn't stop it from being black. >> i was trying to address your question even if you agreed with me which you weren't sure you did about the legislative history and you're bound by the opinion, and my answer is you i i don't think you are. he addressed the specific subject before you, did not address it against the

presumption of preemption and i think he was wrong with all due respect of legislative history, and when you take a three people present and say that's the legislative history, that's a little bit of a stretch. >> you're over your time. i'll give you a minute to sum up your points. >> okay. your honor, it's a facial challenge. we think all these four provisions are consistent with congressional objectives. it's congressional objectives that count rather than this administration's priorities. thrrs no reason -- there's no reason why arizona should suffer the consequences of a broken system when arizona has 15,000 well-trained and capable police officers law enforcement authorities on the ground to help fix the system. that's what arizona wants to do, so we ask you vacate this

injunction and allow arizona getting on and taking care of the health, safety, and welfare of its citizens, and i appreciate your time. >> thank you. we appreciate your argument. the matter is submitted at this time, and we appreciate the vast interest in the case. thank you. we'll be in recess for 15 minutes. >> all rise. [inaudible] [inaudible conversations] [inaudible conversations] c-span live election night coverage starts at 7 p.m. eastern with results from around the country, victory speeches,

your calls, e-mails, and tweets. in a few moments, former homeland security secretary tom ridge on evolving terrorist threats. in a little more than an hour and a half, a forum on prosecuting and defending cases involveing classified information. after that this year's elections . later, a discussion on the relationship between the military and the media. on washington journal tomorrow morning, we're focusing on the elections with role call director.

>> now former homeland security secretary tom ridge on current and emerging terrorist threats. hosted by george washington university's homeland security policy institute, this is an hour and a half. >> where we see the threat environment, where we see priorities that need to be

addressed, and where governor ridge sees the future to a large extent occurring, and he and i will have a conversation, but then we want to be able to draw upon all of you in terms of questions, and let me also welcome our c-span audience who is watching live. we have a number of television cameras here, so governor, let me start with the first question, and, yam -- i mean, the last month alone there's been tons of various cases coming in the headlines. you have a europlot and we're no longer dealing with al-qaeda senior leadership, but their affiliates. there's a jihaddist threat in the united states as well in terms of home-grown terrorism, those who aspire to that

ideology. what keeps you up at night? last week you had the arabian peninsula plot, but you also had a naturalized citizen from pakistan who attempted to travel overseas, but was also planning and plotting attacks and on the metro. it comes from various forms. what keeps you up at night? >> it's similar to a question i got from an audience several months after i was sworn in as the president's assistant for homeland security in the audience mixed it up and said what keeps you up at night? i said don't take this the wrong way, i sleep well, i just don't sleep much. [laughter] i think the reality is is that there are certain things that i

lead this country and i know our security professionals are concerned about, but i accept a post-9/11 world with the norm, with the reality that the jihaddist scourge is global. we're going to be dealing with it for the foreseeable future, perhaps many generations, and i accept that reality, and do everything we can to reduce the risk, manage the risk, reduce the threat, and leave the worrying and the sleepless nights, and there's a lot of folks who have them, to the intelligence community and law enforcement community, and the soldiers, brave men and women overseas. in terms of anxieties and concerns, you addressed them in the question. it's in the just al-qaeda and bin laden, it's the arabian peninsula, the foreign fiters going from western countries to get their training in pakistan

and afghanistan. sometimes then going to other places in the world to actually fight, but often as history shows going back to the homes where they know the culture, they know the environment, where they come and assimilated, and they become a threat, the lone wolf. i think from an operate rational view -- operational view, we have to accept the notion it's a far more complicated world that we live in and there's people who do the western world harm. ij we'll get -- i think we'll get into this, but there's concerns i have in a post-9/11 world where i think our response has been -- has lacked the sense of urgency that existed after 9/11 and in certain areas there and it still exists and hopefully in the months and years ahead they get back to the issues which i think you and i discuss later on. i'll hold off. there are things we need to do

that we haven't done yet. >> to that point, if you had to prioritize major areas of unfinished business and granted homeland security as a discipline is a forever discipline. we need to always think ahead of our adversaries and base their actions on our actions. what do you feel the major areas of unfinished business are and what have your successors done to fill those this >> there's a continuing challenge within not only the united states, but the broader international law enforcement and intelligence community to again sift through all the threat information to determine what is that information that is potentially actionable and act upon it. it continues to be a challenge, and frankly, i don't think we quite got it refined. we haven't done a good job in

this country i believe. we developed a process and venues where people send information that other analysts access and draw their conclusions on what they know. ..i think at the heart of combating terrorism misinformation. i mean, we spent a lot of time and a lot of money in this country and around the world looking for detection equipment. and we should always use the best technology available to help us, whether it's the force and airplanes, et cetera, et cetera. at the end of the day, the heart of combating terror to some is among the weapons, but the ied, information relative to the potential perpetrators. and there's no reason for us to think we have a system refined very well or to the inquiry still have the ability to share it to share it down to the local levels. so i think that's significant concern, that this

administration and future administrations and the broader global community is going to have to continue to wrestle with for the foreseeable future as well. >> well, looking back to and we spent an inordinate amount of time dealing with the information sharing issues and looking at both the horizontal and vertical, a top-down, bottom-up, especially when we're dealing with homegrown threats, that it would be naïve to assume we're going to clean metal from the central intelligence agency and overseas intelligence capacities. where do you see that going in the days ahead? and what is your thought on the fusion test? >> first of all, it first but as we have a proliferation of fusion centers who haven't designed a model. every power building fusion centers, but we don't have a model for a fusion center. so it's not quite -- sometimes they think take quantity as a substitute for quality and the protocol necessary to get the right kind of information for decision-makers and then the

culture, the willingness, the attitude to share that information on down. i said many times the department of homeland security -- if the federal agency. but homeland security is really a national mission. so we need not only good fusion centers with standard protocol, that is simply a standard protocol and our operations centers based on the national emergency management priority we felt when i happened to be secretary. so everybody operates the same way. we also have to create an attitude that not only certain people need to know, but there's also an attitude you need to share, but she but she needs to effeminate. because there's no way possible that there's enough federal employees at some point in time there's going to be the cop on the beat and the cursor control, other folks in the community that have to be shared from time to time, information of what's on the alcor. as i like the idea of fusion centers, but i think a long time

ago we kind of got confused. we threw the name out there, built up a bunch of months and we feel a lot better. i frankly think there's too many of them. we still don't have the protocol we need to make sure they're effective. >> would you agree that there is still a need for a genuine intelligence requirement setting process? you still have the fed meeting well, but to an extent guessing with antivirus state and local. in the cut state and local outside of maybe n.y.p.d., l.a.p.d., miami, and a few centers of excellence to collect a lot of information. but it doesn't really come together in a format for a contextual environment where you can site for instance signal from the noise. do we need to invest in people now? is it analytical capacity? >> i think it's analytical capacity, but it starts with a notion that you have four or five urban centers of excellence. these mayors and their police chiefs in their communities have expended a lot of money to build

that capability. but those resources aren't available to all. so what should the federal government's will be in that environment with these other fusion centers in these communities where they don't have either the leadership of the dollar to do what they're doing in new york and l.a. in places like that? i think the person you do is take the best practices and protocols from those that exist, that is pretty much defined contextually, have framed what kind of information we need to know, what is the kind of information we need to share? the federal government will go a long way in providing certain, not just technical requirements, but information requirements that is basically a template, but everybody is operating to the same template. what you think the state and locals need and what do you want the state and locals to push up the chain to you? and i'd like to think were in the process of creating a template. and there's some conversations and people in and around construction of fusion centers and i don't think they're there

yet. >> i would probably share that. now, looking overseas and looking to friday's case in particular, highly unlikely? maybe you can disagree with me, that had we not been provided good human intelligence and good intelligence from an ally, we would not have been able to detect the explosives, the ieds that were delivered. >> i think the facts are undeniable, frank. i think the fact that two of those ieds were on the plane and they manage to get through whatever technological or visual inspection systems that existed. but i'm going to say -- and again comes the question that keeps you up at night? i think the united states and the rest of the world, one has to recognize that the forces of the globalization of most of us think are very positive: transportation, finance, commerce, also become conduits

for the parrots. formerly contained in the united states, hundreds if not thousands of planes filing and none of the united states on a global basis. tons and tons of cargo. now, just think for a moment, be rational about it and think about it. we need more technology. and i certainly think will do and will find some. but do you really believe in the 21st century world will be able to inspect every single envelope, every single -- every single item that's placed in one of those large containers? every single item that goes into a cargo hold, whether it's become commercial -- will make it one of these days. but the regularization regularization globalization and the challenge will have to accept as part of the new norm

we live in. >> and to continue to invest in our relationships, our intelligence relationships. >> absolutely. this is an answer actionable intelligence are stabilized. i know there's some speculation as to whether they are buried there from our packages out there. what i miss not being in -- i miss not knowing. i really miss not knowing. i get bits and pieces and i have some friends work unit. and you miss not knowing. at the end of the day, good intelligence promotes aggressive action, which prevents attacks. we've been lucky on many instances in this country so far. i don't know who said you'd rather be lucky than good. i like to rely more heavily on good and effective intelligence gathering and interdiction than just been lucky. >> i think that that is spot on. and as we stay sticking with

overseas, are there any countries in particular he been impressed with in terms of their own domestic intelligence capacity, foreign domestic -- foreign intelligence capacity, that perhaps we can learn from? i'm thinking maybe the security service in the u.k. or -- >> well, i never do with the foreign intelligence operations on a day-to-day basis. frankly, what you do, frank, you probably have more insight into that than i do. there's historically been a great relationship with our friends in the u.k., australia, canada and the like. what i'm going to say, during the past several years when there's been quite a bit as international disagreement with certain foreign policy actions this country is taken, that even when those leaders were

outspoken in criticizing the united states, their law enforcement communities and their intelligence communities were working hand in glove with us. and i don't think that has been abated in any way. i still think we're working very, very closely together, even though there may be some public policy debates about what were doing in terms of global foreign policy. >> i think that's a critical point. regardless of where the country may stand on policy, thelationsy service with law ecommunities m. the mac and there is no substitute for it. i guess at some point in time, and i'm going to say this. it was interesting about the recent alert vis-à-vis europe. and i'm going to say this. there were some people in europe and in the early days of the department. i've met some people in the united states to thought we raised publicly the notion of a threat prematurely or we were

properly -- didn't have any sufficient information to do that and they were concerned we were been overhyped. i would disagree in those few occasions we raised at a certain level. before the europeans to express a concern and for that concerned to go public in the lead me to believe that regardless of who or what the sources were, they were considered to be credible sources. and i think like anyone else about when we get into the wind system, i think americans would rather deal with the known than the unknown. would rather do with the threat is possible. the greatest fears -- the dark, the greatest fears the unknown. americans can do with information improperly shield. mccoy found out about the bombers the other day. we got the information from the u.k. we get there were ieds. we knew where they were coming from. not there was any present or imminent threat because of those two ideas because we had

dissected them, but i think the edibility entrusts associated with citizens to do certain things is predicated over a long-term relationship that when appropriate they will be willing to share information and not keep a close hold. and i think that's an important part of how we begun to adjust slowly an extra blade and a very positively to what i call a multigenerational threat of islamic extremists. >> governor, you brought up the homeland security advisory of risk communications in general and alerts. and i've been very outspoken when we have information and we have a responsibility to share that information with the public. a vigilant public had historically, including two recent cases here, faisal shahzad and our so-called booty bomber, lots mood undulate

palette. mark mood. but she was so not only communicate to her own public, but also potentially to the adversary, which can be disrupted. it can force them to either were unto you, so they may either buy us time to roll them up, to rollup or it may force them to trip out. where do you think we have to be going in terms of communicating risks to the public? >> first of all, the point you made to the times square bomber, it was a vendor -- a vigilant -- [inaudible] be alert, be aware of your surroundings. if you see something usual, reported. the incident in the airline, a vigilant passenger probably enjoyed most of the fight over and he saw something that was

really bizarre, unusual, an aberration, out of the ordinary, acted upon it. so we talk about what people say beware of your surroundings. be aware of your situation. and again, i think the challenge -- and this is a very -- a very difficult responsibility for those who have access, first line access to determine what they want to share and with whom they want to share it. but in my judgment, enjoy a lot better at sharing some of that information, even if it isn't actionable. let me give you an example. there are occasions when i was secretary, when there were certain threats of information that came through, involving let's say a city or two. and there was a recurring theme. and the threat while seemed certainly possible, but there's nothing to suggest he was

imminent. on those occasions, since it was consistent, over a period of time, there were a couple of people in that state that we advise what we relearning, what we had heard. not for them to take action. fill in the event that was collaborated or for whatever reason we thought it was imminent, we could pick up the phone, call them and hopefully they would've trusted us to say we know you've been watching this for quite some time. you have been communicating to us. and that's the case. like now. again it's the need to know versus the need to share. and i think there are times particularly now that we weren't sharing the information is sometimes in our best interest, even if it's not actionable because you build up trust in you build up credibility that way. >> governor, on this particular theme having been on the outside where you say you miss having the information. but i think it's fair to say that rarely do we get to when and where. the reality is intelligence,

their estimators. but not clairvoyant and on the analytical side. we know when aware, we don't have a communications challenge. >> if you have the when and where you've got them. >> you've got them, exactly. >> is probably the most difficult job in this absurd that the global community has against the scourge. what is real, what is unreal, with actionable, what's on actionable? at what point do we share? and it's not a science. there is no equation. it's an art. you have to make those difficult calls in a hot sleepless nights. because they're not quite sure they got the dark gray. and i'm sure that by and large these men and women who have remarkable jobs that there is one where you're coming or going to be an addiction that's not a problem. >> absolutely. and let me just put to bed if you think this is a correct

statement. i'm not familiar with politics other influencing those decisions. >> it was very interesting how the security system was designed. and when i look back at my service as secretary, i say to myself, i was such you are fairly affect as communicatively, but she never got your point across. and the point is this, for the first couple of months, normally going over to the department of justice with attorney general ashcroft and the fbi are bob mueller and the three agencies and the cia would take a look at this information and really believe that the threat was imminent and we held press conferences. and we talk a little bit about it. didn't have too much information to share. that would walk away from the podium. i think the third exercise of that tour, not only did we look at the bewildered faces of the journalist, the remember we finally said to each other,

we've got to do better than this. i remember walking up the stage and turning to one of five jurassic individuals -- special operations guide, john mitchell. we've got to do better than this. we came up with the great advisory. elected.com, safety department, other countries. and here's where you feel it into medication. first of all, the decision to raise the threat level was only based upon a consensus among the majority of the president, the homeland security cabinet. the president can raise the threat level. i couldn't raise the threat level. it was a consensus. but the real challenge around the threat system is on the private sector in the state and locals said he goes, you're telling us, what you want us to do? and again, we didn't do a good job of articulating publicly at the time for every level.

they could abuse colors, could at the numbers, could've been the alphabet. but there was a surgeon prescribed level of security would go chewer comedown. and that's why we try to design a program we could do surgically as well. so secretary napolitano had a secretary chertoff and i am a couple others in a couple months ago to talk about it and they were trying to refine it, to make some changes because i think we all believe that it's not necessarily to tell you there's a threat, and in response to whether it's a national, local pre-describe security measures, put them in play. >> and i think that some good advice. and i know we have some russian television stations here today and they've just announced they are going out a color-coded alert system. so i think tagging action based on information -- >> the level of threat should

cover your levels of security and have to be predetermined. and that makes the system very effective. if you're just alerting the public, but the good thing. but the other thing is that we met more often the president of homeland security council and concluded it wasn't enough to go up, number one. and number two, the cabinet agency that probably was the most resistant and at the highest threshold in terms of intensity of security and accuracy of security with the department of homeland security because we ended up dealing with the governors and the mayors and the police chief. so again, i like to take some comfort in knowing it was always rigorous, vigorous debate and we met more often not to raise the threat level than on the occasions when i would go in and tell the president the recommendation was raised. >> a couple more quick questions on the threats on the

specifically. and i've raised a number of my european comments, but the passenger range network, pnr, which was negotiated with the e.u. through 2014. there have been some changes between the commission and the parliament that are reopening this agreement. for privacy concerns and no one suggested privacy concerns are significant. they are. if you look at pnr beyond anecdotally, it did play a role in stopping faisal shahzad or times square bomber. it was acb t. officer who intercepted and that the airport. najibullah zazi, which if we were to put a light meter on the threat since 9/11, i think that zazi is blinking red. this was an al qaeda central, an afghan natural citizen who had intended to travel overseas to afghanistan to commit -- to join

the taliban, was intercepted by al qaeda, brought to waziristan, trained and sent back to the united states because he was a clean skin familiarity with targets. all these sorts of issues. so you've got the zazi case and the case, a.k.a. david hedley case. it has played a role in preventing and capturing terrorists. what are your thoughts on the pnr agreement? >> first of all, i think the international aviation community should be encouraged one, to set standard out. and security procedures and airports to begin with, depending where you travel. we've all seen various degrees of security. secondly, i think the pnr and record information should be universal. i mean, i just happen to think if the world -- maybe just the world is willing to accept the

risk associated with not sharing that information, but there have been so many instances where the jihadist have struck outside the united states. there is a continuing, continuing reference and user planes either to transport the perpetrator or the terrorists. i don't think they're going to turn into a missile, but turned into a target for an attack, but i frankly think pnr request out to be universal and we had to get them from everybody. i know that takes a lot of heavy lifting for the state department. a lot of heavy lifting for homeland security. but at the end of the day, if you want to again, think about manage the risk. it's about reducing the risk. no matter what you do, you'll never develop a failsafe system. but you want to reduce the threat and reduce the risk over a period of time. i think this information not to be international. and by the way, we should not ask for what we're not willing

to give. i remember having a conversation with my colleagues in the european union when i was secretary about passing the name records. initially, frankly, i think we've asked for information that wasn't terribly relevant. all i can make as we set the standard. if we want universal name information, let's decide what would be willing to share with american citizens and ask it of them. because the research may have every right to reciprocate, particularly since we know and have reason to believe you have not only sympathizers, but american-born terrorist or legal residents who have left the united states in god to be trained elsewhere are gone actually to fight elsewhere. so some of their information should be shared. >> and just to underscore, expanding the pnr process beyond the european union. and you just put a fine point on it, it's the ability to do travel and pattern analysis that

you couldn't otherwise do. so i think that is significant. >> it doesn't take a difference. >> absolutely. >> everybody gets a little concerned about the term profiling. but there's a certain pattern of travel, a certain pattern of activity, whether its customs and border protection in this country or customs in other countries, or those officials. its officials of a sovereign country, when you enter into the country is a privilege. it is not a right. dailies have the right based on your pattern of travel to pull you aside and make some inquiries of you as you step into their country. >> this is me speaking, not you. but profiling has been given a bad name. we do it every day at law enforcement and intelligence. without it we would decline. it's hallinan forest and utilized and how is protected in terms of oversight. but i don't think you can do this business without it.

>> is all about taking that universe of potential risk and individuals and try to reduce. chances are you may finally get that one actor or to act yours or perpetrators tried to reduce, trying to manage the risk. and having access to patterns of travel is the way you begin reducing the risk -- your oversight on what might be congressional. >> looking inward a couple -- another general question. i mean, you've seen an escalation in uav and drug activity in the fontana region. and this they had the intent or the political will, they would be the ones driving some of the sufferers. but time and space is what terrorists need. if you look at whether it's somalia or the style, it's

ungoverned space. that's what they're seeking so they can train, plot and courtney. would you support -- and i've been again very outspoken supporting the drug activity, not because i want to, because time and space, time and space. put them on the back heels. do you support that activity? and looking to gannon and somalia, which are very difficult situation, i would suggest light footprint. a significant footprint. again, the capacity doesn't exist in digitally by the yemenis or the somalia. where do you think we go from there? >> you've been pretty clear the use of the uavs have been pretty protective. for this administration, the previous administration in the future administration was to watch the diplomatic client when you're using somebody's airspace. i mean, it was interesting there

was a public report that there were canadian fighters following one of the planes coming in from europe that we thought had packages, but we got over u.s. guys and it was handed off to the united states. the solders, whether they're strong, powerful, known globally or just human feelings are troubled states, they're pretty -- don't appreciate violation of years race. but there comes a time when you have to watch the diplomatic line. but it is about reducing threat to this country and other countries in the region, reducing threats were soldiers on the ground are actually dealing not with a threat to america, the threat to the broader world in general you have to be aggressive and deal with it diplomatically the best you can. >> tomorrow, people go to the polls. homeland security. nine years after 9/11, it doesn't seem to surface as a campaign priority. is that a sense of -- are we

being rolled into a sense of complacency. is it too difficult to address? what should voters be thinking about tomorrow when they pull the lever? >> i can't think of too many elections in my lifetime where america's role in broader global community, be a particularly when it came to national security or military affairs really drove voters. still driven more often or not taking i -- they are driven by issues that are more economic. and right now it appears with -- i'm not going to do the recitation. we all know what's going on in the country of percolating. unemployment is too high. will said that the elect as officials are pointing against each other.

but what i found interesting and listening to the few debates where there is actually top issues. we say they are focused on issues rather than one another. but that's maybe 2012 after the rally reminded everybody of civility and everything they're supposed to be doing. but talking about humanity and prosperity are linked. you can't be economic if are not strong. it's a national security point of view. these tiny but ended notes to explain it. whether you're fighting a global scourge and a much complicated environment these days, i'd like to think entirely convinced most americans in order to be secure you've got to be economic strong. to be economically strong enough to be secure. to give you an example, it's a manic go, but it's telling. shortly after 9/11, president bush asked us to stick around for one of the morning meetings. and so we did a good job of security and our friends we have

commerce to a screeching halt. and i'd like to try and work out an arrangement with our canadian friends and hopefully our mexican friends to build a smarter border. we went to an assembly plant in flint, michigan. general motors assembly plant. he put the chassis on the front -- eight or 10 are processed. the caesar made over in canada. good, just in time. somewhere along the line, seats are made. probably put a computer chip on it. drop it down into the truck and it goes across the bridge in the tunnel to flint, michigan. he got to see in our age, maybe our 10. what if the seats are stuck in a bridge or tunnel because he ramped up security. what happens in the plant? nothing happens. so i think we need to understand the 21st century world and forever more, security and prosperity in her side at our

borders. and right now the economy is so troubled. i mean, there's people out of work. people worried about their mortgages. and even if you are safe and secure with your mortgage and you feel pretty good about your job, you do worry that your neighbor. so it's no wonder the economy is the issue that seems to be driving others. what i'd like to think that down the road we think more in terms of at least add that to part of the equation. i don't know many people who vote for president of the united states because of how they feel about their ability to interact and influence in a political world affairs on the globe. i just don't think most people do that. and i think we better start. >> sticking with that team, high likelihood will have a different congress in january. potential opportunity for homeland security issues to be

elevated. i remember when you were secretary an awful lot of discussion on the aba committees or subcommittees that have some resemblance of oversight of your day today at committees. and if you think about it for a non-homeland security, imagine trying to run a company and had 88 outside boards of directors with very different opinions trying to micromanage your operations beard and he did not have a lot of flexibility in terms of spending. some of that is improving. >> well, like washington, typical washington, since those 88, it's not proliferated 288. so i'm not sure keeps going up bigger and bigger. would you like to thank -- i mean, the 9/11 commission which has been well received and a number of the findings have been recommended, including the creation of the department and many others. yet congress hasn't looked

inside of themselves should be able to reform some of their activities. does that still bother you? >> i'll tell you what bothers me is the congress informed the 9/11 commission after the tragedy of 9/11 along with the recommendations of unlike other commissions and other studies, congress pretty much ignored some of the critical recommendations. they ignored interoperable communications. they ignore the reality that you really don't have strategic partners involved in not only the planning of the growth of the department of homeland security, but for oversight. i mean, you can't possibly have oversight when it's over a single department. in these early days, we could use strategic partners. if the forthcoming? absolutely. should it be considered constructive? absolutely. when you have 100 plus

committees, you don't have a strategic partnership. and i think i like to see this congress go back -- i can say this because i was in congress. if he walked through the halls of congress today or next year sometime and see congressmen running back and forth or senators running back from hearing his subcommittee hearings, they're all completely with too many committees and subcommittees. trust me. it's all in the letterhead. but then ask them to give up jurisdiction or reduce the number of subcommittees that are pushed back. i'm not saying that as a criticism. that's a fact of life. if they really want to be engaged in this or other issues they really ought to streamline the process. and i think i'd like the new congress to do, i still have not not -- i still don't understand, this goes back to an information sharing question we had

before -- what happened at fort hood. and i still don't understand how the abdulmutallab.on the plane. we talk about connecting the dots, a term we use after 9/11. every once in a while the information is like a big red dot that flash is. and somebody should be acting on it. the question becomes whether or not congress has been well-intentioned, but has built so much process into information sharing, that process has been substituted for judgment, good judgment. and i'd like to see them again go back and see that information is most critical and important thing you do against these jihadist, go back and see how the system is working. it seems to me it's not working very well. >> i would -underscore it's the

lifeblood of all the national security. >> i certainly don't know why they didn't get the visa. we don't have a lot of intelligence, human intelligence. the father comes and says i think my son has been radicalized by the way using admin. we all know about al qaeda in the arabian peninsula, plop, plop, blob. if you his visa, the only country can't go to the united states. i mean, it's not even about the debates and being politically correct. when you have certain pieces of information, should you not act independently or do hit the send button to push the decision-making of the chain of command? will here come pushing decision making up the chain of command level isis because you have to act minutes later. >> and it did cost us lives in fort hood. one of the challenges and this is not only the homeland

security perspective, but rearview mirror playing. we often arch into the future backwards based on yesterdays wars. and one of the challenges i think is it's recognizing we've got predator. but our adversary, whether it's al qaeda senior leadership, whether it's al qaeda's formal affiliate or whether it is this dude that is becoming more and more difficult to conserve, haqqani network, they are all ascribing to al qaeda's global ideology. the question is how do we go about doing prioritized plan in the future? take last week alone. and too often washington teaches these as an either/or proposition . last week you had the farooq ahmed plot to bomb the d.c. metro. and historically, terrorists have often seen training and

rail and surface transportation as target of choice. i mean, 311, two major in the united states. the brain fitness case. another new yorker traveled overseas to commit terrorist acts. came back and was traveling the long island railroad. same i traveled every to give the young man. or najibullah zazi. this is another i would say al qaeda central -- again, subways. but we had a reminder just on friday that aviation as well. so these aren't either or proposition . but how do we get to the point where we enhance some of our surface transportation, but not at the expense of aviation security? would we go from here? not to mention the big system. we cannot have a tsa equivalent. we never get it to work.

>> i think public transportation has been and will continue to be a challenge because there's a certain level of security measures you can embed before you compromise the purpose and utility of public transportation. i don't know about any of you are all of you, but i know i've rushed down the stairs to get on a subway in a lot of the cities around here. i'm doing a lot more rushing by myself. besides, the matter is it's a fact. and so you say to yourself, if you accept the notion that you cannot go back to having a discussion with my fellow countrymen and fellow citizens about managing the risk, understanding that it is impossible, regardless of the resources we would target to eliminating it, you'll never have finite resources because government has so many other awesome responsibilities to this

country in so many different dimensions. you say to yourself, have we done all that we can vis-à-vis public transportation, knowing that it's not feel safe. have we done all we can without compromising its futility. so one time, there may be more kinds of detectors. there may be more technology. you do have more surveillance. individuals and some bomb sniffing dogs. the ladies and gentlemen, it's not an assumption of risk. or managing the risk of the country. and i'd like to think that god prevent something would have been that i think it was in july of 05, the bombings in the u.k. and i think they have their equipment within 24 to 48 hours to replace the buses and it was business as usual. they do it in israel all the time. so you have to save yourself were going to do what we can to reduce the risk, to eliminate it. as a country we know that our

professionals are well-intentioned, well resourced, even in a perfect system are not going to be able to avoid a terrorist attack. if one occurs, will do with it. so let's take a operational security to a level that it doesn't compromise whatever the public transportation notice. and that's out there. you have to accept some level of risk. that is the new norm. >> no shortage of time. i want? questions and then maybe opening up to the audience here. but coming closer to our backyard, i would argue and please agree or disagree with this characterization, but i would expect that mexico is today and the mystery folder and narco-insurgency. it's claimed 20,000 lives since january 2000. personally, would you agree with that characterization? and secondly, you got a dhs role on border security and other

components, but there's a bigger role just behind dhs. where do we go from there? >> do you agree to characterization? >> i do. one could say that columbia differs a little difference because the narco-insurgency argues it would overthrow the government. others would say i like the narco-insurgency because they think it's the immediacy and the context and the overwhelming nature of what the mexican government is trying to deal with down there. they may not try to overthrow the government, but you've got these cartels up and down the mexican peninsula. they're certainly going to undermine. they think is an extreme situation that requires us to reach out into everything we can to help president calderon. there are several challenges associated. one, relationships we have between intelligence of law enforcement communities on both sides of the border is probably not as mature and in certain

areas? the credibility and perhaps relationships we have with friends to the north. we haven't worked together that long. and even the president himself has admitted they have a lot of problems with corruption, et cetera and bribery with the local police forces. so understanding extenuating circumstances the government is operating. i think a couple years ago that congress appropriated past of something called the marita initiative. that is down to 1.3 billion or 1.6 billion. i've also seen estimates only two or 3% of that money has and extended. the question becomes what are we waiting for? the second question becomes is the effort to help our friends in mexico stalled because of a turf type between the three or four agencies that would naturally oversee the relationship with mexico? state, homeland security, justice. you can name them. who does what under the umbrella

of the merida initiative is pretty important. .. >> initially weaverbird

dealing with the cartel then do start to deal with obviously of the country within the country and of course, but then the challenge with organized crime, they usurp the authorities of legitimate government. >> absolutely. >> they don't necessarily want to run the government but control the space and want the government to get out of their way. they don't want government interfering. to that extent along our border is a recipe for continued unrest and greater drug smuggling and the drug trading and murderous activity on this side of the border. it is a matter of time. >> and correct me if you disagree also in our

neighborhood, you have real challenges with venezuela and ahmadinejad, why don't they pay attention? tsai fall victim two this myself price spend so much time worrying about the middle east and southeast asia but this is close. >> probably not close enough to that issue to give you some inside explanation why historic three administrations of both parties ignore our relationship with central and south america i'd like mexico a little bit with central america with the emerging economies of all stock

vermette -- democracies then to make a state visit zero or two and that is about it. we just talk about columbia up. if you believe as i do america's future for prosperity and economic reason is tied to our ability to engage, why don't we have a free trade agreement? why don't create not only law-enforcement also economic? take one on with all good in a shot and chavez? he is problematic and obviously have stirred the pot and does one wonder? it is a leap of imagination to think there venezuela connection, i could become a training ground for some

extremist 10 south america? is it a leap of faith given the support for hezbollah and hamas? while those sovereigns will do what they do to build that relationship around energy and harassing and challenging america every step of the way is there a and incumbent upon us with security and law enforcement to create stronger economic ties with other countries in the region? >> your opportunity for relationship building you have to be there if the state your presence and you have to be more aggressive than a public way starting with the white house. >> starting with you but we've neglected the soviet union with missiles in our backyard. five no question and then we open it up and this is looking much closer. i have never had the

unspoken thought. [laughter] but what came to the other big gap there is a lot of discussion with the inoperable communications and shame on us we're still talking about this today. the obama administration seems to be at odds with the specter related issues that could be devoted to the first responders. is this something you share my concerns? >> it is a good place to start with the 9/11 commission everybody years of horror story of the first responders at the twin towers they fully there are other four stories with other incidents not terrorist related but the same concerns existed. went emergency the perfect -- personal to community in a timely way of

the fact the 9/11 commission recommended that for broader public safety community as the community beg to for nine years if the fact that the investment dedicating spectrum to a broad ban public safety network would not only assist us to be better prepared for an attack, not just terrace but what about a mass casualty of our natural disaster? or just a single horrible car accident? where a first responder community are emergency service personnel tied together with broad p.m. to. the network to stream video, voice, data, it is unconscionable for a lot of folks of the private sector say we will let them use part of the spectrum but

there is plenty of their if the commercial world and they're looking at a piece of dedicated spectrum then they could lease and i would rather go the other way. we should start with some spectrum just for public safety community. another 9/11 commissioned recommendation falling on deaf ears. a lot of services and public tributes to firefighters coming first responders to build memorials and send contributions. that is great but i say to the congressmen in particular of 81 to do something significant, maybe there will be fewer memorial services to go to if you build the broadband safety network that is the ultimate commitment to those whose serviced under a difficult task and an investment that improves the quality of life in america a generally.

problems were so visible after 9/11 but does not literally improve the safety of our communities across the country regardless of what incident? >> that was strong. let's open up to questions and please wait for a microphone and identify yourself i am a senior fellow here. were you touched come on a few instances but could you talk about the private business sector? their tango between what kind of information passed to them and how it is shared, , etc. >> public-private? the government is well-intentioned without the

total engagement and participation in support of the private sector. frankly, a lot of that has happened without any public initiative for public money. the big challenges we ran into common number one a lot of the other departments didn't think that we would basis and more important they ran into a cold war mentality but a mind is set to, inertia that these organizations have been doing business a certain way. our mind set to was we will tell you if we think you need to know and by and large one individual from one of the three alphabet agencies told a to start working with me frankly i don't think you'll ever need to know much.

bottom-line, when we a gauge the private sector they act responsibly that is a continuing challenge to respond to a threat and one quick example we have the hard drive out of pakistan identifying surveillance tapes on five buildings new jersey and new york and washington. remember we raise the threat level in 2003 which became controversial. i would do it again under the same circumstances i put my foot in my mouth and i regret the but two editorialize my own comments but to show what it had done two years later was entirely different because you are more worried about your customers come when employers and employees and you are critical to the efforts i who presumably

this of ministration does that as well. >> there is the supply chain resilience if you look at the recent case, a third party vendors not just said guest traveling at ibm been demanding more out of the supply chain. >> stock but with 9/11 putting security protocols at the other end of the supply chain you do that and ridden expect stations factions or securing individual packages and there is time of secured containers. things that you tried to avoid a single point* of failure in the system into except that responsibility and is paying for it too.

>> my question is in the aftermath of the terrorist threats, president and after the statement politically motivated with the elections, but otherwise he would not take a stance on the issue. do you agree with that characterization of the administration's response and whose call is it to see how much or what do you reveal to the public? >> first of all, i was the subject of the same kind of criticism on occasion when i would raise the threat of all right before the elections i guess august 2004. it falls on deaf ears. i don't think anybody costs will use the threat to level to try to effected political outcome which i thought was

interesting, not necessarily commentary was the president made the statement rather than the secretary of the department of all the and security but those are the decisions they make in the white house of new shows up on the sunday show? decision made in the white house but there is another point* of view that the president wanted to make that statement to reassure us. the highest level labor doing all they could. i don't go there. it is inappropriate and of think a president would do that. >> al qaeda has targeted elections with the outcome of the madrid. >> they have not affected the outcome but the second part of a question, i don't know what the decision-making process is with the threat advisory system anymore other than

being an orange airport it has not been used. according to the old system that must mean whenever they see coming across the daily threat reports has not generated the need to go public. i can only assume that to be true. >> quote questions about rules fighting terrorism the clinton administration relied on criminal law and push the administration went conflict with problems of the geneva convention but neither is a good fit. the obama administration is a hybrid but should this be an evolutionary process or the continuing threat in the traversed century city we have an international standard for dealing with terrorism? in the 18th century we made new rules to do with piracy. do a prefer the system now or too seriously looked at in a system? >>