>> they have consulted the pentagon i believe? >> no, i don't think the pentagon can do consultation on illegal documents presented illegal. >> right. right. >> what you have though is a situation of -- if you want to define it as what is the role of the whistle-blowers in the internet age -- >> yeah. >> i think wikileaks -- i think wikileaks is the template for arrogance, self-right -- self-righteousness. they got an award in 2008 for being the best new media in the u.k., and a couple of months ago joined four other human rights organizations in writing to

wikileaks saying that you're putting the lives of people in danger. >> yeah. >> as this whole issue evolves and emerges and as there are no absolute in what we do, i would say there's a couple of absolutes. one is the documents they have have been obtained illegally and are being used illegally. second, they don't have the expertise to know how to eliminate information that could be dangering our men and women in uniform. third, it is a glaring example of how technology has outpaced law and policy. >> yeah. i noticed one thing that it did in a rare point of conversion it brought the "washington post" and the times together. that doesn't happen very often. i wanted to make clear that i wasn't saying jeff was saying it

should be bombed or even cyberdisabled through cyberspace, but there are people out there that have written they have interpreted from his remarks. anybody else want to talk about the wikileaks? >> i just want to repeat two words that gary wilson mentioned, and that's anonymity and accountability. this -- a lot of things have failed to keep up with current events and with technology, but i wrote that down. that's fundamental here. >> elisabeth? >> just that the "new york times" has been the recipients of the pages we have redacted names and identities. >> right. kirk? >> i guess it's not just people in uniform that are put in danger. it's the people in these countries that have been -- >> afghans on the ground.

>> right. afghans, iraqis who have put themselves at risk because they believe it's the right things. if you've been in those situations, you see some of the horrible things done to people and it's inconceivable to me that someone would do this. >> has any of that proven to be true? i know that was in the afghan documents. is there any evidence of that happening yet? >> it is absolutely clear that our enemies in many places are basically going to school now on these documents, and certainly efforts are being taken to protect the lives of people ho may be at risk -- people who may be at resisting. -- risk. i leave it at that, but anybody who has access to the internet has access to these documents.

>> just because it is at that particular time -- can you be specific? are we putting them in witness protection programs? >> i will resist to take you up on that and just say that there are a lot of people who are paying a lot of attention to making sure that those who may be at risk are not so. >> right. >> i think we should open up to questions now. i do want to circle back to gan guantanamo bay later. where's the microphone? >> it's right here. >> in the first row? if you state your name and afghanistan. >> i'm clark bell, and since 1992 we hosted an every other year conference and military media relations. at the last conference, a year

ago, there was talk that embedding was down partly because of newsroom cut backs, partly because of the dangerous situations in afghanistan and outside the green zone. i know the dynamics have changed a little, but is someone keeping score on how many applications there are and are there records kept on this? >> well, i don't have -- >> the answer is yes, and i'm not the one keeping them, but yes. yes, of course. >> there are more embed requests now? >> i don't know how they compare with the past years, but there's certainly a large number of embed requests now. yes, there are. kandahar in particular. >> i had -- yeah, the big embed varies with the news of course. in the winter, i know there's a

number of embed requests for helmand and when the operation got going and there was a waiting list. that's shifted to kandahar. it depends what the big operation is. >> we have three pending reporters, and they can have it and then you. nadia, brian, and then tony. >> thank you. i'm nadia, a reporter with nbc television in the middle east broadcasting center. you raised interesting topic, but i wanted to ask you about wikileaks. the documents have been released and it's a dismissal of the military and civilian leadership that we haven't learned anything new, but for us, it's a validation of the deaths about

the infiltration of the iraqi prime minister. don't you think the release of the documents is going to cause a problem of cred the to the u.s. military considering that general petraeus is talking of a strategy to reach hearts and minds and the civilian leadership is turning a blind eye at least to say the best in terms of civilians deaths and killing in iraq. >> on the incredibility question. i think we've been clear that the release of these documents and the publication of them causes a credibility question for us, you know, with our allies in particular in terms of those affected. it's one the questions i think that is an unintended consequence of the advances in

technology. in terms of what is in the documents. i'm not going to get into what is in the documents or have that discussion here. that's a discussion you're more than welcome to have with my colleagues at the podium, but what i will say is that in my view, the difficult thing for me to grasp about wikileaks is that the things that are out there now have been covered by the press and have been covered by journalists, warts and all, and so the question becomes what is the whistle-blowers value here? i think it's a very valid question to ask, and there's many of us who question whether there is in this instance. >> i would say from the point of view from the "new york times". i didn't write the stories, but michael gordon wrote the main piece, and you know, i could say what you saw in the paper is the editors and michael and the

other reporters felt that while it didn't change the overall narrative of the iraq war as we know, it certainly added texture, a lot more detail to the historical record, and especially for someone like michael who is bringing his third book about iraq, and he looked at the documents as someone who they were essential to the historical roshed on the long history to the war in iraq, and the story on iran than previously disclosed and the greater number of civilian deaths and the torture that was going on. that's the view of the "new york times" that there was something that was important to know in these documents. >> general? >> there is a little bit of picking at the scab that this wikileaks has done. my -- i left iraq in june of 2004, so

my experience is dated. one thing that i'll not forget is when abu ghraib broke. when my senior iraqi advisor, a brigadier fighter pilot under saddam. he said you can't imagine how badly this will play in the arab street. we were in the process of developing the iraqi army and security forces at that time. we were put on a ped stool by the young iraqi men we were bringing in. that abu ghraib thing cost us dearly. the many snap shops in wikileaks that could hurt our reputation will do again perhaps not as violently as in 2004, but i

would also try to balance the bad things that we discovered in there with the great things that young men and women from the united states and the coalition are also doing. i would plead for a balanced review of these documents as we see outcomes in the analysis that intell officers either as professional intell officers or folks who do it for an allocation try to see into the picture of the last few years in iraq. >> kirk, do you have anything to add? >> i can only speak from my own experience but the u.s. military as a whole turned a blind eye to torture and abuses is totally incorrect. i was involved in a

investigation of iraqi detainees by security forces and i know my chain of command and imhander jumped on that immediately and saw it as unacceptable. for anyone to characterize this is a blanket kind of policy across the spectrum, i just put it out there that if that's the perception from the wikileaks documents, and i've seen in a few media outlets that, you know, the u.s. turned a blindy to this -- a blind eye to this. i can't speak to that. i can just tell you my personal experience. there's people out there trying to do the right thing as the general said that have the values and the moral standards to do the right thing when confronted with a crime. >> can i use this opportunity, by the way, i'd be interested to

anyone in the press, wikileaks does raise a very interesting issue above and beyond wikileaks itself as to the role of the mainstream press in taking the documents, ewing them -- using them, writing about them. we're aware that it's happening. we had a number of folks come to us which we greatly appreciate. others have not. i'd be interested in the press view of wikileaks, and does that put you in any kind of more difficult situation, or is this, is the framework for which you all currently write and operate allow for a wikileaks presenting all these kinds of, you know, kind of classified documents. >> well, hey, i speak for the editors. the view is certainly that wikileaks was viewed as a source, the way the "new york

times" always view a source. you check the source out. you just don't take everything verbatim. you get other opinions. in this case with the most recent case with iraq, you know, we had michael gordon who is the new york -- "new york times" authority on iraq and a number of other reporters who covered this war for in years, so, you know, michael and sabrina port with documents pulled stuff out and had researchers, and didn't use anything that didn't check out. it's like you go with a source. you go to the pentagon, this is what we got, and, you know, we're taking these names and so forth. that's how the "new york times" viewed wikileaks, not a a collaborator, but as an outside

source. >> how dough yo -- how do you validate that? >> you'll have to ask michael on that, but from my view, it's people who covered the war for a long, long time. >> bryan first. >> brian bender with the boston globe. to follow-up on the obvious question on credibility and obviously the documents you said were released illegally, but they do raise credibility questions i think in the minds of some of us, and you mentioned credibility in terms of american allies, you know can the u.s. government keep secrets, that sort of thing. one thing that really struck me, and it's been covered somewhat in the last few days is some of the numbers on civilian casualties, something that us and the media for a long time in iraq tried to get of sense of how many civilian deaths there were and who was responsible for

them because the u.s. was not the primary driver of that b obviously, and we were told for many years the u.s. military doesn't keep those statistics, and then some media outlets made estimates based on news reports and other sources. i think at one point i think it was the ap estimating 2,000 civilian deaths a month. we were told at the time that was overblown. turns out a number of documents talk about that in the wikileaks release which puts number of at one point to 4,000 a month at the same time. without getting into the specifics of that my question to you is where you sit on top of this pyramid which is clearly a vast public affairs operation worldwide, how can you be sure that when that official is put out there to talk to the press that number one, they're not

lying, or number two which is the case more often than not, they don't have all the information, and they're actually misleading by omission. general casey was asked about this the other day because he was the commander at the time and now is the chief of staff. he booted the question and didn't answer it. the fact is his command number one said for all time they didn't keep count at all, and when they did respond to press estimates it was overblown. >> one of the first steps from president bush when he first gave a number publicly on civilian casualties, that was news. >> that was much later. >> yeah. >> how can you be sure that, you know, the information out there is truthful and not omitting information and is not purposely untruthful? >> that's a great question.

i can't speak for those who headed my office in the past, although i'm sure they have approached this in the same way that i would or i think anybody would either republican or democrat. when you take a job like i have, you have to take this on the understanding that you're credibility is key. it's your -- it's your currency. you have to say as i did under oath in the senate that i will be as transparent, credible, timely, and accurate in dealing with the press as i possibly can. the people i choose to work with me, the people who speak on behalf of the department for whom i'm responsible, i'm responsible, i'm accountable, and i can only do the very best that i can to ensure what is being said is the truth.

i don't know how i or anybody else could answer your question above and beyond that other than to say that it is a commitment that i have. it is a commitment that those who work with me have to take in order to work with me, and based on the individuals with whom i've worked on both sides of the aisle, i'm sure it's a commitment that everyone who would take a job intends to live up to it. >> general, do you have any thoughts on that? >> the -- during the last administration, it was the milt tear -- military's view, specifically the army's view that the military the army's chain of command had to impose a higher standard of discipline and moral warfare execution than did the civil leadership at the time. this goes back to what happened

in guantanamo bay, how it morphed over into abu ghraib and caused general petraeus among others as the commanding general to put a letter out. we are not going to torture prisoners. we are going to follow the following policies associated in our treatment of detainees. in concurrence with that you had an unfortunate faceoff between mr. rumsfeld and general pace, and the comment was related to finding something going on that is wrong, but it's in -- it deals with iraqis, a sovereign state at the time, and regime pace said -- general pace said that the soldier or marine is obliged to stop the activity, to stop the illegal activity, and the

secretary of defense at the time said, no, the obligation is to report the activity, and general pace came back and said, stop the activity. general pace had to recant the next day. that gives you an idea of some of the ambiguity coming from the highest level of our government and its impact on what was going on in a theater of operations where the military had to go in and establish a higher level of moral code than they were getting from washington, d.c.. >> toe any's next -- tony's next. >> tony with the bloomberg news. question for doug. one, at this point have any of the 300 iraqi names that the pentagon was particularly concerned about in the wikileaks

documents, have any of those names been released from last week or has wikileaks at this point in your estimatation redact those names? i have a follow-up question too. >> again, tony, who is my great friend, a question like that is more appropriately directed during the daily briefings to the briefer, but i will say this. we understand that the wikileaks team understands the redacs. you had to have been deaf not to have heard the message the first time. we still believe there are individuals who could be at risk. we believe that there is information about how we conduct ourself on the battlefield which can put our soldiers at risk, and we are doing everything possible to address that, and there is an enormous amount of

manpower and financial resources going into having to do this that would not have been necessary had these documents not been released illegally. i'll just leave it at that. >> second question. between the first wikileaks dump in july and last week's jump there was other dumps in woodward's book. the city was silent about the material in his book and bragged about his ability to get documents in november and december. he had access to them for his book. that's a double standard. how do you square that circle? everyone should read the book according to gibbs at the white house. that is filled with classified information and access to individuals that mr. gates is

probably tearing his white hair out, but how do you square the two? >> great question. >> me again? [laughter] >> there's three other people on the panel. >> no, no, you don't want my answer. >> i'll ask all of you. >> no, that's okay. it is a valid question. i mean, we are living at a time when we're seeing prosecutions of fact -- presentations of facts and opinion appear like we've never seen before. wikileaks is certainly one of them. bob woodward has written 16 books. he does have kind of an iconic presence in this town begin the watergate coverage. it's hard for me, tony, to really reply to what i think is a great question about the woodward book because what we've seen in this is the rise of kind of histories that don't cover

years and decades and long period of time, but they may cover, you know, 18 months of it's a new definition of history. it is clear that given the kind of coverage that takes place here, coverage is no longer just separated into here's the news, here's the gossip and stories about who is up and who is down. they do all tend to blend together, and i think there are the kinds of new relationships that individuals have both who are in the prez and outside of it -- press and outside of it who come together to collectively raise new kinds of questions that haven't been raised before. i don't know how i would answer that question other than to say that those kinds of questions are being asked when they have never been asked before. >> all right.

>> [inaudible] >> they're being asked by lots of people. >> if you had to define the difference between the information in the woodward book and the information that wikileaks released, is there a difference in -- is it a quality difference on quantity difference? what's the difference? >> the information presented by wikileaks is hundreds of thousands of documents literally obtained illegally and dumped illegally, snapshots in time, individual reports with no context and no permission. those who talked to mr. woodward about his book, each of them talked to mr. woodward conscientiously, and for a

reason. i'm not a judge, and i am not the person to judge why or how they did it, but each of them did so knowing what they were doing. i don't think the release of the documents illegally obtained was done in any kind of coherent manner for any kind of stated purpose with anybody having reviewed everything that was in those documents. i understand the question, and i understand that -- >> so -- >> they're not easy answers. >> the political agenda are acceptable? >> no, i didn't say they were acceptable. [laughter] i just said that if you ask what the difference was in terms of the information conveyed. that's how i convey of the information. it is -- it is not for me to judge the bob woodward book. i've never been in a bob woodward book, and with any luck

i'll never be in his books. >> one thing i can say for sure is the justice department i covered until recently has been more aggressive under obama in investigating the leaks. >> right. >> criminal investigations of journalists for obtaining illegal information. should they be investigation bob's sources for leakers of classified information? >> i, again, i'm not a lawyer, and i'm not a judge, so i would probably not be the right person to be asking or answering that question, but i understand the reasons for questions, and i understand that we are seeing new forms of presentation of what is a combination of fact, opinion and stratification we have seen before.

.. >> some [inaudible] one big difference. >> i thought it was just the president who could declassified. >> each levity classification is a program where the guy who is

responsible for that can act on it, so it doesn't all go to the president for classification authority. >> [inaudible] >> we have -- wait until the us mic -- >> -- classified on every page everyone was trying to get it and the president and over backward the weekend before he came out and declassified all of that. so again, a double standard issue. nothing happened to him. there is a deafening silence, twittering starting to doubt but that was it. >> you are absolutely right, tony, i wasn't here last september. [laughter] i was preparing a conference on military families. so let's go to another -- who's got a question? right here. moe. >> im morris davis, used to be the chief prosecutor at guantanamo bay when i was on active duty.

for mike republika affairs talked the talk and said the media is important and we are going to work with the media. the problem is walking the walk and the administration talked about transparency and openness but used a state secret privilege to the lawsuit and with the wikileaks, you have the decision here in federal court where the judge's decision was originally published and redacted, then pulled in the redacted version to paint an entirely different picture of the case. and in the carter case you have the video of the canadian interrogation video the supreme court of canada released the was available on the internet, you had a closed secret proceeding to air the city what guantanamo, which literally met the requirements of the rules, but the rules made no sense in that case. so i guess my question is the over classification of information and secrecy i think is why people are so curious what is behind the curtain and i'm just wondering what is being done to try to avoid this over

classification of information. >> that is a great question. you might return to guantanamo because i am perfectly happy to do that. >> that's great. before we do i interviewed one of the reporters down there right now and this reporter said at least on the carter case reporters are still -- we still have to struggle to get basic information like court transcripts even information like how the pentagon, how much the pentagon spent on mental health testimony in the carter case, photographs are still center to a ridiculous degree and that is a quote solid start to add that. >> let me address that, and it's too bad that there are, you know, the reporter you talked to felt that way because we've made a huge effort over the past several months to bring in reporters, bureau chief some lawyers and representatives of the military commissions in order to address what i think every bhatia agreed were outdated ground rules of

engagement between the media and the military commissions. again, this is one of these areas where we are in a new world and there haven't been -- there are not precedents particularly when you're dealing with the military commissions down there. the initial ground rules i believe were written in 2002, 2003 and have not been updated for a long time and people had made those complaints they were not getting the documents, that there photographs were being overly censored, and we felt that there were very valid issues to be dealt with and we took the initiative and brought the group together including the pentagon press corps. in the process, we tried to deal with both of the operational aspects, i mean, we went from the how do you determine what are the security risks with photographs to provide better toilets for the journalists

covering this, and we believe that we cover all of these issues and we have developed new ground rules which were developed in cooperation with the press and presented to them. i am aware that in the process of implementing these rules that there are not going absolutely perfectly although i've been told that it is a huge improvement over what took place earlier. i don't know why there is problems getting transcripts but i will find out because it's part of the ground rules of transcripts and documents are to be made available. the issue with regard to the over classification was a very valid issue and we have dealt with that if the jttf and commissions. interestingly enough i've been involved in trying to address everything from over reaction to liquor.

how can we make sure journalists have a place to drink and where should the of looker and i've spent a good deal of one of the day's the past week trying to find out where the jttf put a particular reporters liquor because the bureau chief asked me isn't this kind of bad face. welcome at tolino it's not bad faith. we are trying our very best to respond in a forward leaning away to valid issues. we did the same thing we think on the battlefield engagement when reuters came to us with regard to the death of two of their reporters in 2007. so, intention -- our intention is to work in tandem with the press in order to address these issues. i am going to find out about these particular issues because i easily have an issue today at guantanamo, but it is not

because there is not the willingness. a lot of people to inform, and i guess i would be interested with what you would have to say or tony. each side has rights and each side has responsibilities. we try to address issues in the context of both that the press has rights that need to be addressed and we need to address them. there are also responsibilities, and i will say that virtually everyone with whom we dealt in coming up with these new ground rules on the press site at all which military commissions, those of the pentagon have a unique responsibilities and are in his unique positions putting unique positions with protection of information and with regards to the new world we face down there. i find the whole process to be

not only enlightening but very encouraging if people were recognizing it's not just a one-way street. that is the attitude with which i try to approach this job and how we deal with the press. are we perfect? know but it's not for lack of trying to address the allegations. >> we only have a few more minutes. just very briefly i know you were personally involved in the case of the guantanamo iv. the four reporters who were reportedly booted out of guantanamo and then allowed back in. can you go into that for minute? >> the actual physical image of them being booted out has changed and behind bars and never allowed in probably isn't the right image. every reporter has to sign the willingness, the willingness to adhere to the ground rules. they did sign the statement.

four of them went against the rules that the signed. i'm somebody who believes may be naive and u.s signing a piece of paper that it means you are signing your willingness to abide by rules, the you've given your name. they did not -- there was a panel to be imposed. it was by my staff. i backed the panel. there was also an appeals process that was implemented very quickly and went all the way up to us and the reporters were reinstated. as a result we all agree to take a look at the rules and we all did collectively. so with regard to all the issues involved in guantanamo from the imposition of penalties to the reinstatement to the resizing of the rules altogether i personally don't regret any part of it. >> who has a question out there? is their anybody here that isn't a working journalist who would

like to ask questions while we encourage that as well? go ahead. we have time for a couple of more. >> i'm the pentagon correspondent and an adjunct to your in washington. i want to follow on to things that have been talked about. one is the issue of on the record verses background in the pentagon briefing room and it was good to hear you say that your preferences to have as much on the record as possible but i haven't researched but i'm sitting here trying to remember when an assistant secretary or assistant secretary have been on the briefing room the last two years. i can't remember such an occasion being on the record even undersecretary of deputies undersecretary with the exception of ashton carter. but certainly nobody talked about policy. that's always on the background whether it is a report that's come out like the china power report or follow-up to some foreign visitor. it's always on the background and also on her trips when

traveling with the secretary policy folks always on the background. so i would be interested to hear why that is or whether you have any interest in changing that. and in the other thing on the wikileaks, you mentioned the colonel who does the morning gaggle. about a week before the documents cannot, on behalf of the pentagon he urged established media organizations want to cooperate and publish this material saying it would give a veneer of credibility to this what he called irresponsible action, so my question for you, doug and elizabeth, d think the times and the other newspapers did a terrible thing by participating in this? and what if any consequences would you foresee and to the extent you are aware was this discussed at times? was it considered that also you're always happy to get information there was some

reason to consider maybe it shouldn't be done in that way? >> before you start of you notice i did ask the secretary of we could be looking for two more on the record briefing in the future. so >> i will go first and then he elizabeth. but if it's all right with you after we do this i do want to raise one issue i think is worth it. for the school and the purpose of the seminar because al is the correspondent for the voice of america. i worked for several years and the public diplomacy and i do want to make a point that al is that in excess of military and civilian parts of journalism and i want to make a point of the public diplomacy in the military as well. let me just respond by saying we are making every effort to provide as much information as transparently credibly and timely as we possibly can. i take your point out having

more of the policy folks be on the record at the point that intend to follow through on. i also have to say that there are times and i believe that what we did last week that the background decision was made to be able to provide information. we sold to provide information this way but we wouldn't be doubled to provide it. so, i think that there are -- we are not always making the zeros and decisions about this person is going to go out on the record and this person is going to go out on background but the point that you're making a think is a valid point. and if i can say one other thing with regard to "the new york times" and other papers writing on this subject it is one of the reasons i asked elizabeth and wanted to hear from the press when you thought because i don't think there is a clear-cut

answer on the mainstream media are arriving. i personally think it is probably an issue if you are a journalist trying to put myself in your shoes you are always based with what are your sources and how do you get the information and present the information as best you can. i have to make difficult decisions and i understand the members of the press have to make difficult decisions as well. so in dealing with this, i have stated what we think about wikileaks and the information out there and what was presented but i also understand no one is living in this zero sum world including in the press. >> i wasn't part of the discussion of whether this would be run in "the new york times" once was made available so all i can tell you is what i've been told by editors which is there was a value in the information and the times decided as they

sit before to get wikileaks as a source and similar responsibly. >> we have about one minute left. do you want to see something else? >> mia lee if you don't mind because it would like to hear my colleagues here and al is asking the question and brings this to mind because i think it is relevant. in a world where you can and do communicate by technology and e-mail and facebook and all this i think we're losing sight of the importance of the direct human contact in conveying information. you have a decade in which younger men and women in uniform have been the ones representing the u.s. government out there in beijing directly, you are no longer dealing in london and paris and rome with editors and government leaders. you are dealing with the village

leaders and teachers and people who themselves have become opinion leaders in their countries because they have the means to do so and because the press is covering them. you can have religious extremists from florida to yemen become international figures of consequence as a result of the attention paid to them. it's an issue i think is not addressed and discussed enough and i think an accompanying issue not discussed is the fact them on military components of our government, those in public diplomacy development and elsewhere have i think lost the ability to do their work productively given the structure of the circumstances now in which they have to work behind embassies which are virtually forces spending a good deal of time stamping visa at the beginning of their career and

innocence on a kind of a parallel but lesser track to try to become ambassadors. you see young men and women working for all over the world, and i would say i hope your next seminar or one of your next seminars would have to deal with how do you provide the incentives on an encouragement for those kind of people to come to them on the military parts of the communications and be able once again to provide the essential elements of the human interaction that i think is key in developing policy. >> that is a great place to stop and a great idea for a panel. thank you for coming. everybody in the audience and whoever's watching. [applause]

>> please be seated.

>> good morning, everyone. we're going to take up the first case that's on the calendar, and that is the united states of america vs. the state of arizona. we allotted 30 minutes per side. the appellant wishes to save time for rebuttal, that's fine, just keep an eye on the clock. it's counting 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 there's also a provision in the case of than the rest the person will not be released until that status is determined. i don't know any provision in federal law that goes that far.

doesn't that get into unsettling territory? >> the provision you're talking about which is the second sentence we think has to be construed to be consistent with the furred, and fourth sentences that the only people who are investigated are those who there's a reasonable suspicion -- >> that is fine. what are want to focus on sean not be released until it is determined to. >> it can only be determined in the context of the fourth amendment. >> i understand that but how can we construed so then the detention does not exceed the possible federal law? >> it would be a specifically

contained provision. basically i can tell you it says that it will be construed in accordance with federal immigration what to preserve the constitutional life of all persons and the privileges of the united states citizen. that is part of what incorporates the fourth amendment standings. >> let's suppose the person would reasonable belief that they committed a felony and then they post bail and are able to get out but then the statute says you don't get out until your immigration status is determined. how do you reconcile that? >> ordinarily if they go to jail someone has to determine their

immigration status anyway. >> i can see that often that would be done, but this is an absolute statement. shall not be released until it is determined to. and they are let out on bail but then the statute kicks in, doesn't it? >> if you take the other provisions you have to go as far as the fourth amendment allows you and you have to turn them loose. if you can determine reasonable on what their immigration status is the statute provides that you have to turn them loose. or the provision would be inconsistent with the constitutional life of all person. >> the immigration service would pick up an illegal alien, and in the process of determining whether he was legal or not, it is required he be presented to

an officer in the shortest time possible. is that not what would happen here? >> the idea is to follow the usual procedure if we have reasonable suspicion, you need probable cause and then next thing you have to do is let them go if you can't identify them. [talking over each other] >> on the highway you can't identify them. >> would you clarify for me, is there some debate between the parties about sentenced 1 and sentence 2 are to be determined? i am curious how you envision the statute working for those officers in the field? >> in the first place, i start with a proposition that officers certainly understand the concept of reasonable suspicion and probable cause and how long you

can keep somebody. so then the statute, the second sentence has to deal only with respect to where there is a reasonable suspicion and that is consistent with the third and fourth sentences. secondly, the court failed to apply three principles with respect to the interpretation. one is to interpret a statute in a constitutional manner. two is interpreted so it doesn't end up with an absolute resolve and three to interpret in accordance with the legislative intent and when you look at the statute the legislative intent is to deal with illegal aliens. arizona has a long and proud tradition of hispanic population. >> the statute goes on to

provide if a person is stop for a restored detained produces a document like a valid driver's license, that is a presumption you are legally here. but in the case -- what happens? if they produce a valid driver's license? does the statute still have to verify if the person is here illegally? >> no. that is the point. >> so if they have a driver's license they don't have to comply with the other parts. >> it is all over. which is a lot better than the current status. the current status doesn't give you that. >> there doesn't seem to be what the statute says. >> it does. i think the statute is pretty clear. if they have a driver's license it is presumptive that they gone. [talking over each other] >> the statute is intending to deal with illegal aliens. illegal aliens we are talking

about, if you interpret it the way the government or the district -- [talking over each other] >> it doesn't say a person 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. that is the presumption that can be rebutted by the conversation between the officer and the alien which indicates reasonable suspicion that he is not an admitted alien or american citizens. >> you are absolutely right. very often in practice the first thing an alien tells them is he is not a citizen. that takes care of a reasonable suspicion. >> if we interpret the statute in a way that is constitutional

-- >> they certainly would. >> there are two other provisions. would you like to talk about five? >> it is the issue of whether you can -- whether you can make a criminal penalty for being employed, to attach a penalty for people who are unauthorized to work, penalize them as a way to keep them from working.

that is clearly consistent. they are not supposed to be working, to deal with the employer's standpoint in that particular expense pre-emption. even with respect to employers. and with respect to employees, more is it clear if you look at the statute or anything congress has done or is there any manifest intent to preempt the area, congress has even put some penalties to say this is the problem. >> the problem is your argument

is foreclosed to us. in 1990, judge ferguson found and wrote the congressional intention was not to punish employees. right or wrong, they must follow that rule. judge ferguson's opinion, and -- >> the legislative intent to determine the legislative intent, consisted of a five person committee more present. the legislative intent seems a long way from being clear and

manifest. >> us to believe the fact that the judge ferguson is absolutely wrong. how did the ninth circuit overruled another three judge panel on what the legislative intent was? and the immigrant, couldn't work during the time to be inconsistent with the legislative intent, where they were awaiting the asylum

hearings or other proceedings. judge ferguson, rest in peace, may have been wrong. but how can we turn that around? >> you are in a position to do what was simply wrong. >> it doesn't allow that to that. [talking over each other] >> and on campus. >> and on campus. immigrant rights center opposed to some problem with respect to the section. how about the final section? >> with respect to section vi,

that is a provision that is consistent with a federal statute, 1252 c, it presents arizona law enforcement officer for making an arrest of somebody who is removable from the country. the idea of that is to permit arizona law enforcement officers to work to uphold eyes when they are held for people who have been removed and convicted of a violent crime, and who have been removed and returned -- [talking over each other] >> the same problem with respect to detention? >> i don't believe it does. this is somebody a lease once

tield. someone who has either been removed or returned to the countoun. there is nothing to arrest. >> is not restricted -- [talking over each other] >> that is an example of someone who is abscond and and not gone or someone who have gone, clearly -- >> somebody who is arrested is not a national check and find that he was convicted. sentenced the personal search his term, and is free, the arthat iona policeman can relea him because he is removable for an aggravated felony.

>> it may appear veoun complicated about who -- [talking over each other] >> it may be clear in some cases like murder or bank robbery or sexual abuse of a minor which is cause for removal even though the sentence is absurd and may be unclear in other cases. >> that is the deck i was trying to make. ice maintain the data base of people to those who have been cod >> jeroun a leverett scheme established a lengthy process determining whether somebo leng. 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. there is a lengthy this is a facial challenge. it is a facial challenge and there are certainly circumstances that are applied in a constitutional manner. it is not unconstitutional in every conceivable -- >> i am trying to understand how this works. an officer determines running the data check that someone has been convicted of second-degree murder or whatever crime, they take them -- their arrest them

without a warrant, take them into custody and what do they hold them for? >> before their arrest them they have a reasonable suspicion. take them off for a waffle stop, then they have to have a reasonable suspicion, check with a race to find out who the individual is. until they do that, either ice nor they know who they have. various communications with ice -- [talking over each other] >> we don't know if this is office -- >> if you talk about getting

back to the fact -- this is a facial -- this can be applied in a constitutional manner. >> how long do we get back? >> that depends -- >> 48 hours? >> probable cause, we are looking at all the statement, less than 11 minutes. >> do you want us to construe the statute to only operate if arizona ask space for a ruling? >> i don't think it is the only

time. >> the concept is to provide the authority required if you implement a federal statute. that needs to have state authority. we just don't know but this is to clarify that. >> thank you. >> good morning. and when neil. when discussing the provisions at issue and would like to lay out the constitutional structural and provisions we think government validity of

those provisions. [talking over each other] >> there's a difference the tween the government and congress. >> the execution law under article 2 and interference with the execution is part of -- >> it is done fairly and well. this is because the subject matter of immigration which is the treatment of foreign nationals within our own borders is a core aspect of foreign relations and one of the purposes of the adoption of the constitution was concerned that individual states might embroil the nation in disputes with other countries. it is 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 is particularly important to protect the rights of u.s. citizens abroad and their reciprocal treatment. >> 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 should have his immigration status checked. >> i am not aware of a level of dissatisfaction or concern that has arisen now but -- >> how about the same rule in rhode island? has that led to foreign relations being deteriorated as a result of checking immigration status? >> there have been concerns expressed in recent years. >> as to rhode island? new jersey? or arizona? >> the declaration submitted by secretary feinberg explains that

this particular law has brought a broader concern. those would be applicable -- [talking over each other] >> any other state, new jersey or pennsylvania or nevada or any other states ever issued a declaration that the legislature declared to make patrician to enforcement of public policy of all state and local government agencies in arizona? >> that is an important point. this is an extraordinary statute that combination of additional criminal penalties that on top of those adopted by congress and mandatory enforcement for mandatory checks any time there is a reasonable suspicion. section i describes these are designed to work together to adopt attrition by enforcement and adopt public policy of the state of arizona that is independent and outside the

control of congress. [talking over each other] >> does it say whether they operate outside control? >> don't put words -- [talking over each other] >> not statutory -- >> it is the description of what will happen. if i would explain -- >> why don't you concentrate on the provisions -- >> i would like to switch to section iii in particular which establishs a state crime for failure to carry a registration card required by the federal criminal statutes but only applies to people who are unlawfully present in the united states. it criminalizes -- those prosecutions are brought by the state and not subject to the control of the united states government. it is pre-empted clearly for three reasons. is a direct regulation of immigration. the federal provision that is

cross referenced part of congress's direct regulation of immigration follows that the states in position of criminal sanctions over and above and on top of the same state politicians are themselves regulations of immigration -- >> i don't want to speak to my colleagues but you don't have to spend a lot of time on section iii. >> i want to make the point that the other act particularly section ii was designed to work with section iii so -- >> arizona makes respect to section iii more to complement what the federal scheme -- >> the supreme court said the registration being issued was built on top of that. does occupy the field and a court specifically said a state may not complement or add auxiliary regulations and criminal penalties on top of

that. there are conflict pre-emption because the effect is to criminalize illegal presence because it only applies to people who are lawfully present. and the policy of the united states in statute consistent with international practice not to criminalize presence in the united states so for all those reasons we think section iii is pre-emptive because of direct regulation of immigration. unless the court has further questions on section iii, i could switch to section v of the statutes. the employment provision. with respect to section v as the court pointed out this court's decision in the national

emigrates case could analyze the backdrop in the enactment of the federal politician and sanction provisions and recognize the conversation considered but deliberately rejected the possibility of imposing sanctions. >> it is common ground. we abide by that decision. [talking over each other] >> if i could add one point on section v -- >> do what you have to do. >> i would like to underscore one point that reinforces why the court was correct in its evaluation which is not just a legislative district point.

that point is thirteen 24 a of the federal act, requiring individuals to a test he is lawfully present and authorized to work and criminal sanctions of the federal act for violating that provision. significantly there's another provision in 1324 a that says the individual employee may not be used for any purpose except to enforce the federal statute. to us, that clearly shows congress contemplated the employees's involvement in connection with employment could only lead to federal consequences and there will be no state consequence. that was not made -- it was a point in the face of the statute. >> a perjury is declaration, the

state in which that perjury is committed will not prosecute? >> that is probably correct but that will not make the employment itself unlawful. whether it could punish -- >> why do you believe the state could not prosecute and perjury committed on a federal document? >> if it is regulating perjury, the same way section iii is pre-empted, is not up to a state to prosecute false statements made to the federal government. >> do you have any authority -- >> the supreme court authority in a civil context for the case involvement. the relationship specifically in the context of fraud between the federal agency and those who it regulates are a matter to be addressed by the federal government and the state could not create a simple course of

action for fraud. no need for the court to decide that here. >> i am talking about the criminal penalty for perjury. >> the question is whether the state would have authority over the subject matter whether it is criminal or civil means, we don't think -- >> what did you have in mind where the state is found not to have ability to prosecute somebody who perjured himself to the federal government? >> i am not aware of a specific case but that relationship would ordinarily be governed by federal law. i address the two criminal provisions on top of a comprehensive -- if i may i would like to turn to section 2 e of the act. >> i am interested in how

salerno fits into this. >> we believe that this is pre-empted on its face and we believe -- let me explain why. consistent with the salerno formulation. >> used to believe this is a facial challenge. >> it is but we believe provision is unconstitutional in every application. what we object to and what is preempted in this context is the mandatory nature of the requirement. we do not question the authority of the state in state law enforcement in the course of an ordinary stop, traffic stop or stopping it someone on the sidewalk to question someone about his identity, his status and indeed dhs because federal

officials rely often on information gleaned from state and local law enforcement. what is problematic is the mandatory nature because what the state had done is to harness the apparatus in aid of this separately constituted mandatory criminal enforcement approach to the immigration laws. >> that is the theme of your brief, but why -- isn't congress capable of saying no? >> we think congress has.

[talking over each other] >> 287 gee of title viii, the first nine sections of that provision established this was enacted in 1996, establish a mechanism under which dhs threw a ice can enter an agreement whether state and local law enforcement agency or correctional agency and under that provision the state officers may exercise authority of ice officers -- state and local officers have to act under the supervision of ice officers and follow ice priorities in terms of what enforcement. [talking over each other] >> not withstanding, no provision of this act will stop

-- nothing in the subsection will be construed to require agreement under this subsection for any officer or employee of the states or subdivision to communicate with the attorney general regarding immigration status of any individual including reporting knowledge that a particular alien is not lawfully present in the united states or otherwise to cooperate with the attorney general in identification, apprehension, detention or removal of aliens not lawfully present in the united states. 287 gee officers are under the ag, but under gee 10 this doesn't stop regular officers from doing exactly -- [talking over each other] >> not that they are not authorized. the state statute mandates -- >> they want to use their

people. >> i don't think so with all respect. if one looks at 10 d -- an agreement is not required for state officers to cooperate but the pertinent language, the important languages cooperate with the attorney general. when one sovereign utilizes officers to assist a second sovereign the background understanding would be the second sovereign whose laws are being enforced it would take the lead and the other officers of arizona are assisting -- >> that is all very well for a sub sedation but listen again. to communicate with the attorney general regarding the immigration status of an individual doesn't say to communicate with what the attorney general wants to communicate or cooperate, this is a right under the federal statute for the local people to

communicate with the attorney general. >> section 10 says that will be part of a better cooperative relationship and this is demonstrated by the fact. it is to communicate with the attorney general and section b says otherwise cooperate. >> besides you. >> the otherwise cooperate refers to a. communication is part of a cooperative relationship between the state and federal government. >> isn't the obligation of the federal government made very clear by sections 1373 c which is entitled obligation to respond to inquiries, immigration and naturalization shall -- mandatory word -- respond to an inquiry by state or local government agency seeking to verify or ascertain

the citizenship or immigration status of any individual. it doesn't say we are going to. it doesn't say 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 is on the conduct of the state and local police officers who would be by hypophysis making inquiries -- before we get to what is submitted to ice they would be stopping someone and prolonging that stop by circumstances they might not otherwise do it in the absence of 1070. >> they might not do it or they might do it and this is a facial challenge but you have to approve every time they stop someone that would be an unconstitutional stop. >> our burden is to show every

time the mandatory application -- it takes away the discretion of the local law enforcement officer to decide whether to pursue a particular line of inquiry rather than mandates. >> what about the first sentence of section ii? if you have reasonable suspicion, if it won't interfere with the investigation, then you can request -- request immigration status. >> if it is mandatory, those parts of the first sentence do not provide for state and local officer to take into account federal priority, the only thing that can be taken into account our state or local law enforcement officers set of authorities. >> what priorities? >> as we explained in our brief, the secretary of homeland security through a ice established priorities in the

importance of the immigration act. >> there can be more priority established under ice or by ice as responding to inquiries. >> what i am describing doesn't go to ice's response. it goes to the amnesty and conduct by the police officer when encountering someone in the neighborhood or stopping a car. [talking over each other] >> what would the fed do in this case? >> we want to say what would i do if left to my own law enforcement judgment knowing what the fed's approach is with respect to particular -- >> you have been told by the arizona legislature what to do, which is if you have reasonable suspicion, if it is practical to do so if it won't interfere with the investigation, the immigration check takes 11 minutes according to the last

speaker. >> the problem is the state has mandated it. >> before arizona passed this statute, this provision, let's assume no agreement, no cooperative agreement, could the sheriff in a local county say to his officers, whenever you make a sound and think there's reasonable suspicion the person is not here illegally you are going to check with i am f? >> same problem. [talking over each other] >> the state hasn't said it is mandatory. >> if the sheriff adopt a policy and for these purposes and others, impulse by the sheriff or the department in how matters should be regarded as having the force of law intended to bind the officers who work for him -- >> the sheriff is decided in his

discretion running this department and officers. >> in that situation, is not solely the sheriff's concern when it comes to the enforcement of federal immigration. >> the sheriff hasn't issued such a policy statement. this guy is illegal, he is -- i am going to call -- what is wrong with that? >> at some point, what an individual officer does may not rise to the level of a legal problem but in the case of individual officer, it would be worked out in a cooperative relationship between the federal government and the state. >> why an officer couldn't independent of this law in light of the existing federal law that has been documented, couldn't on his own decide to call ice about

a particular person who is detained? >> it would be perfectly permissible but there is another step in the statute which we think is important in underscoring what arizona is trying to accomplish -- >> let's not get away from this point. i read your brief and the district court. i heard your interchange with my two colleagues and i don't understand your argument. we are dependent as a court on council being responsive, focusing, trying to help us, not fall down like soldiers in defense of some position -- you keep saying the problem of state officers told to do something. that is not a matter of pre-emption.

if the federal government wants a pre-emptive field congress can say so. we cut off communication. we don't want to have this information. it hasn't done so. the judge made very clear to you it has not done so. i would think the problem is to concede the point where you don't have an argument. >> with respect we do believe we have an argument. two other points that we think critically underscore that. the mandatory nature of section 2 b is coupled with the private action in section 2 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's a policy of not enforcing the immigration laws to the maximum extent possible. this builds in a powerful

incentive for state or local officer to pursue circumstances which ordinary law enforcement would not call for. the state singled out this subject matter of immigration for this extraordinary mandatory requirement and a subject matter that is a federal subject matter in its prosecution and enforcement. the other thing that is extraordinary about this is it is geared to the reasonable suspicion standard. that is a familiar standard in terms of authorizing or committing law enforcement. it is a purposely low standard, far lower than probable cause, a standard whose application depends upon the individual judgment of law enforcement officers in the field, often not exercising that power because of the recognition that they should be applying a standard somewhat above it. this is being transpose from a

permissive application to a mandate every time state and local officers encountered someone on of beat and circumstances, all circumstances might lead to a judgment that there is reasonable suspicion that that person is unlawfully here. >> reporter: would be permissible if arizona said every time you stop or arrest a person you have to check him with national crimes center to see if there are outstanding warrants? >> that is a regular part -- >> or a person taking fingerprints? >> in that circumstance the state is regulating its own sake law enforcement. if the state says -- >> not necessarily.

if the national center has outstanding warrants in the state of california be -- >> that is the information the officer might find but in terms of pursuing the nc i see what is different is immigration, you will pursue immigration in a way that you won't pursue any state or federal -- >> seeing that illegal aliens are removed from the state of arizona, many of them are also criminals. >> the state has an interest in that but it is important to focus on the fact that the encounter between local law enforcement officer may be on the street or in school with a student who has been in a fight and the officer may have a suspicion that student in school might be unlawfully present. all of a sudden this law requires that incident be pursued by the officer.

but all of that is geared not toward something that the state can do. the state cannot remove the person or prosecute the person. it is and intake for ultimate federal enforcement of the law. >> you can deliver an illegal alien over to the federal officials. that may result in that person -- [talking over each other] >> in the field a cooperative relationship against several -- federal law-enforcement there is cooperation about that. before the person was brought to there would be communication between the local law enforcement officer and ice, what would you want me to do in this circumstance? what this provision does in the words of hines is stand as an obstacle in every encounter to the cooperative relationship between the state and federal government because it creates a

state enforcement priority, mandatory enforcement approach backed by this private right of action in an unprecedented way for the use of regional suspicion standards which i said once authorized but not used in this way to compel law enforcement officers. >> it is rapidly increasing. i would like you to respond to the argument with respect to section vi. >> with respect to section vi, it presents problems the district court identified for starters. the district court pointed out, section vi parties agreed in lower court geared to the situation where the crime might be committed outside because there was already authority within the state of arizona to arrest -- make an arrest. >> not if that person already served a sentence.

arizona couldn't allow warrantless arrest. but this section does allow that. >> that is true, but that is not a justification put forward -- >> justification the district court talked-about. [talking over each other] >> parties didn't address it. if that is an additional justification it is something to be considered. this is a preliminary injunction stage to be considered by the court. >> you are likely to win. if that were considered you would be likely to lose. >> it continues to present the problems that the court identified because there is no requirement in section vi vet state or local offices contact ice to find out if events or removal. the officer would have to make a judgment about whether the state was also public offense in arizona and determine whether it would in turn lead to removal --

>> as suggested earlier second-degree murder was the crime. >> in that situation it would probably be possible to make that determination. >> do you have a salerno problem? >> i don't think so. there is no requirement to check with ice first of all. and the eye and a past that responsibility for making determinations in the federal government or maybe some situations in which something could be done otherwise. if i could make a final point -- >> succeeding -- that applies -- [talking over each other] >> we believe there might be some circumstance in which it could but that should be sorted out on remand. if i could come back -- >> is that a concession?

>> it is not written in a way that takes account of those circumstances. it was written in a way that requires that ice be consulted before conduct was taken and the state should focuses wooley on aliens and that is the concern. >> could it be construed way? [talking over each other] >> you heard council say arizona seems willing to accept -- >> they discussed that -- there is simply no language that could be led into the statute or construed to require fire trucking with ice. >> the whole thrust of the statute is communicate the

federal government. >> but there is no requirement that be done before the local officer make a judgment and that is contrary to the general cooperative law enforcement. if i could return to 2 be, i see my time -- >> make your point and that is it. >> the arizona statute with its extraordinary mandatory investigation has to be considered in light of what would happen if every state in the union did this. the united states, the nation as a whole is responsible for other nations in the way their citizens are treated within the united states. if every state did this we would have a patchwork of the third circuit decisions which struck down a similar law included and also important to supreme court recognized our a statute like this can affect local permanent residents and citizens because another important factor on immigration law is the respect

of civil liberties not subject people to interrogation or surveillance and this statute because of its mandatory requirement based on minimal reasonable suspicion raises that concern profoundly. >> thank you. >> a few quick points. the first is about reasonable minimal -- minimal reasonable suspicion. ins lopez took care of that. the supreme court specifically said reasonable suspicion was a standard to protect those lawfully within the country. it has been a time-honored

standard. i don't know how suddenly it becomes so minimal. secondly it is pure speculation. we're talking about facial challenge but pure speculation that police officers are going to check out people they otherwise wouldn't have checked out in their discretion. the idea of this statute is to prevent those people from sanctuaries in these policies to make those checks. >> it says a reasonable attempt shall be made. [talking over each other] >> we encourage them to do it. [talking over each other] >> >> you mentioned national center case and are looked at it a little bit.

the point i would emphasize is that particular case addressed whether dhs had the authority to enact those regulations and did not address the subject of whether it's the states in the exercise of their power as indicated by others could address that particular subject. the national center also is failed to apply against pre-emption of state law because they were not married to state law. they were dealing with an administrative application. >> if judge ferguson analyze the congressional intent whether to punish employees as a condition of bonding them out, why isn't

that general premise what the intent of congress was, applicable not only with dhs but when the state does it? >> there were no police followers to begin with. >> we are dealing now with the intent of congress. if the intent of congress is found to be black by judge ferguson just because it is in one room or another room, it doesn't stop it from being black. >> i was trying to address your question that even if you agree with me which you were not sure you did, whether you were bound by that opinion and my answer would be i don't think you are because he did not address the specifics before you. he did not address the subject of the presumption against pre-emption or the police powers of the state and i think he was wrong with all due respect. and we take a three people

president to take legislative history a little bit of a stretch. >> you are over your time. just some up your point. >> congressional objectives felt rather than this administration's priorities. there is no reason why arizona should stand by and suffer the consequences of a broken system when arizona has 15,000 well-trained and capable police officers, law enforcement authorities on the ground who can fix the system. that is what arizona wants to do so we ask you vacate this injunction and allow arizona to get on with taking care of taking care of the safety and welfare of its citizens.

>> we appreciate your argument. the matter is submitted at this time and the court appreciate the interest in the case. we will be in recess for 15 minutes. >> all rise! this court stands in recess. [inaudible conversations] >> a couple of live events to tell you about. nasa will have a news conference marking the tenth anniversary of the international space station including questions for the station's crew.

that is on c-span2 at 9:30 eastern. on c-span just before noon live coverage of and urban institute discussion on challenges facing governors. there will be 37 new governors after today's elections. >> c-span2, one of c-span's public affairs offerings. live coverage of the u.s. senate and booktv, 48 hours of the latest nonfiction authors and books. connect with us on twitter, facebook and youtube and get alerts e-mail on c-span.org. >> 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.

>> let me welcome everyone to george washington university, we are in for a real treat to-part of our policy and research forum. we are hosting one of my favorite people in the world while holding the highest regard and respect, gov. tom ridge. working in the counter-terrorism and homeland security field by have been privileged to work for a number of devoted, dedicated people you will ever meet. that doesn't always get recognized outside of those of us in the field but i will put

no one above governor ridge. he initially served in vietnam, that experience, land did so valiantly after becoming -- after that he went to law school, became the ada, a different attorney in erie county and ran for congress for five terms. from there he went to two successful terms as governor of the fine state of pennsylvania. then 9/11 occurred and he came in a new form where president bush called on gov. ridge to stand up at the time as the first homeland security adviser to the united states. i had the opportunity then to work for the governor. from there he became, as we look

at the hole being less than the sum of its parts, governor ridge was instrumental, drove the creation of the department of homeland security that brought together 22 different departments and agencies with a common mission, unified nation and secretary ridge served as the first homeland security adviser. lots of firsts and all very successful. it is a privilege to have him. .. university homeland securilicy . this is an hour and a half. >> to have a conversation, to get a sense of where we see the threat environment, where we see priorities that need to be addressed and we're 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 you in terms ofd let me welcome our c-span audience who's watching live so we've got aur number of televisn cameras here so, governor, let me start with the first question. and -- i mean, i mean, the last month alone you've seen tons of various cases that come to the headlines.se firstly, the europlot. a lot of attention focused on how the threat has meas itized and longer dealing with the leadership and a you've got a jihadist threat in the united states is well in terms of home terrorism, those that aspire to al-qaeda ideology. what keeps you up last night? not only did you have the aqa

and the arabian peninsula plot but you also had a naturalized citizen from pakistan who attempted to trave l overseas bt was also planning and plotting attacks, farouk ahmed, on the dc metro. so it comes in various, shapes, sizes, flavors and forms not to mention natural disasters. 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 assistant -- assistant for homeland security the audienced mixed is up and said what keeps you up at night? well, i don't want you to feel -- take this the wrong way. i sleep well. i just don't sleep much. [laughter] >> and i think the reality is, is that there are certain things that i believe this country and i know our professional security professionals are concerned about, but i accept a post-9/11

world with the norm, with the reality that the jihadist scourge is global. that we're going to be dealing the foreseeable future, perhaps many generations.t and we ought to accept the 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 are a lot of those folks that have them to the intelligence community and the law enforcement community and the soldiers, and the brave men and women we have overseas. terms of anxieties and concerns, i think you've addressed some of them even in your question.a it's not al-qaeda anymore and bin laden. it's al-qaeda and the arabian peninsula. it's the foreign fighters that are going from western countries to get their training in pakistan and afghanistan.at 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've asem lated and they become a threat, the lone threat. from an operational point of view, vis-a-vis, al-qaeda we have to accept the notion it's a far more complicated world we're living in and there's more sympathizers that would do us harm but the western world harm. on the policy size of you i do think we'll probably get into this in a discussion. there are some concerns i have in a post-9/11 world where i think h our response has been - has lacked the sense of urgency that existed after 9/11 in certain areas i think the sense of urgency still exists and hopefully in months and years ahead they'll get back to some of these issues which i suspect you and i will discuss in greater length. so i'll hold off on comment. >> to that point if you had to

prioritize the major areas of unfinished business and granted homeland security as a discipline isho a forever discipline, we need to constantly be thinking ahead of our adversaries and as they base their actions on the part of our actions, what do you feel the major areas of unfinished business are and what have your successors done to be able to back all those? >> well, i think there's a continuing challenge withino no only the united states but the broader, international law enforcement andd intelligence community to again sift through all the threat information to determine -- that information that is potentially actionable and act upon it. it continues to be a challenge. and frankly i don't think we've quite got it -- we haven't refined -- we still haven't done a very good job in this country, i believe. we developed a processes. we've developed venues where people areo theoretically sendig

information that other analysts can access and draw their own conclusions based on what they know. tfe but i think at the heart of combating terrorism is information.a i mean, we spend 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 in this available to help use whether it's airplanes, et cetera, et cetera. at the end of the day the heart of combating terrorism it's information to the relative to the information, information to the terrorist -- the potential perpetrators.i and there's no reason for us to think that we got that system refined very well or to think we're still -- have the ability to share it down to the local level so i think that's a significant concern that this administration and future administrations in the broader globals community is going to have to continue to wrestle with for the foreseeable future is well. >> while looking back to -- and

we spent an inordinate amount of time looking at the information-sharing issues looking at the horizontal and top-down, it would be naive to assume we're going to glean that off from the central intelligence agency and overseas intelligence capacities.om where do you see that going in the days ahead? and what's your thought on the fusion centers?o >> on the fusion centers? >> well, first of all, my personal thought we have a proliferation centers who haven't designed a model. everybody is talking we're building fusion centers and we're building fusion centers but i don't believe we have a model for the fusion center so it'so not quite -- we sometimes i think, take quantity as a substitute for quality. and the protocols necessary to get the right kind of information in for decision-makers and then the culture -- the willingness, the attitude to share that information on down. i said many times that the department of homeland security -- it's a federal agency.

but security is a national mission but we need not only a good fusion centers with stated protocol. this is if we have standard protocolat in our operation centers based on the national emergency management priority w built when i happened to be security so everybody operates the same way. we also have to create an attitude that not onlyy. do certain people need to know but there's also an attitude that you need to share, that you need to disseminate because there's no way, no way possible that there's enough federal employees to deal with all the information out there and at some point in time it's the cop on the beat, the cruiser control. other folks in the community that have to be shared from time to time, information as to what to look out for. so i like the idea of fusion centers but i think a long time ago we kind of got kweesz. -- confused. wee build a bunch of them and w would feel better. i frankly feel there's too many of them and we don't have the

protocol to make sure they are effective. >> would you agree there's still a need for a genuine intelligence process and the feds mean well and you've got state and local outside of maybe nypd, lapd, miami outside of the few centers of excellence who collect a lot of information but it doesn't really come together in a format -- or in a contextual environment where you can siphon the signal from the noise.te do we need to invest in people now? is it analytical capacity -- >> i think it's analytical capacity. start with the notion that you have four or five urban centers of excellence. these mayors and their police chiefs in their communities have spent a lot of money to built that compatibility so what should the federal government role be in that environment with

these other fusion centers, in these communities where they don' t have the either the leadership or the dollars to do they're doing in new york and l.a. and places like that. i think the first thing you do is take the best practices and the protocols from those that exisfrt that are pretty much defined contextually and have framed what is thee kind of information we need to know and the kind of information we need to share? and it would go a long way in providing certain -- not just technical requirements but informational requirements so there'sl basically a template that everybody is operating off the same template that everybody buys do. what do you think the state and locals need and what do you want the state and locals to push up the chain to you? i'd like to think we're in the process of creating the template. but some conversations and some people in and around the construction of fusion centers, i don't think they are there yet.o >> i would probably share that. now, looking overseas and looking to friday's case in

particular, highly unlikely, maybe you can disagree with me if we were prided good intelligence from an ally we would not have been able to detect the explosives the ieds that were delivered.s >> i think the facts are undeniable. i think you're absolutely right. the fact of the matter that two of those ieds planes means they were able to get through technological inspections that gets through. again it's the question what keeps you up at night. g united states and the restp of the world -- one hs to recognize that the forces of globalizationni that most of us think are very positive, transportation, finance, commerce, also become conduits for the terrorists. 20 million containers in and of themselves within the united states, hundreds if not thousands of planes flying in anded out of the united states

around the globe on a daily basis, tons and tons of cargo.i now, just think for a moment, rational about it and think about it. we can talk about we need more technology and i certainly think we do and we will find some but do you really believe in the 21st century world that we'll be able to inspect every single envelope?thry every single -- every single itemsi that's placed in one of e large containers. every single item that goes in the cargo hold whether it's a commercial passenger liner or a commercial freight hauler? we may get to there one of these days but the reality is the globalization of flight just aids and abets global terrorism and that's just a challenge we are going to have to accept within the new norm that we live in. >> and continue to invest in intelligence relationships.nu >> this is an instance where

actionable intelligence probably saves lives. i know there's some speculation as to whether there's a dozen more packages out there. what i miss being inside -- i miss not knowing frankly. [laughter] >> i really miss not knowing so you get bits and pieces and you have some friends working it. and you miss not knowing it. but 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 would rather be lucky and good. i would like to be both but i would like to rely more on goo on effective intelligence gathering and interdiction than being lucky. >> i think that's spot on. and as we stay sticking with overseas, are there any countries in particular that you've been impressed with in terms of their own domestic intelligence capacity, foreign domestic intelligence, foreign

intelligence capacity that perhaps we can learn from? i'm thinking maybe the security service in the uk or -- >> well, listen, since i never dealt with the foreign intelligence operations on a day-to-day basis, frankly as much as you do frank, you probably have more insight than i do because of the relationships you do have. but i think historically there's been a great relationship with our friends in the uk, australia, canada and the like but i must say during the past years when there's been quite a bit of international disagreement with certain foreign policy actions this country has taken, that even when those leaders were outspoken and criticizing the united states, their law enforcement communities and their intelligence communities

were working hand in glove with us and i don't think it has been abated in any way. i mean, i think we're working very, very closely together even under some public policy differences about what we're doing in terms of our own foreign policy. >> i think that's a critical point.so i mean, regardless of where countries may stand on policy, the relationships between our security services, law enforcement, public safety and homelandre communities but neve be -- >> and it just has to be. l there's no substitute for it. i mean, i guess at some point in time -- and i must say, what's interesting about the recent alert hevis-a-vis, europe, and must say, this, there were some people in europe in the early days of the departmentle -- and admit some people in the united states who thought we raised publiclycl the notion of a thre prematurely or we weren't properly -- didn't have the sufficient information to do that and they were concerned it was being overhyped t 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 if properly shared and look what we found out by the bombers and we knew they were from the uk and ieds and where they were coming. not there was any present or imminent threat because we had detected them but i think the credibility and trust associated with government asking 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 it close hold and i think that's an important part of how we begun to adjust slowly but i think very positively to what i consider again a multigenerational threat of these islamic extremists. >> now, governor, you brought up the homeland security and risk communications in general and alerts. i've been very outspoken on when we have information, we have a responsibility to share that information. a vigilant public has historically including recent faisal shahzad and you had an alert public that played a role in the potential terrorist incidents but you also not only communicate to our own publics but also potentially to the

adversary which can be a disruptive kind of function that can force them to either -- we're on to you so they may either buy us time to roll them up, to roll up a cell or it may force them to trip up. where do you think we ought to be going in terms of communicating risk to the public? >> well, first of all, i think the point you made with regard to the time square bomber it was a -- >> i guess it was a veteran and the secretary and the president has talked about being alert and aware of your surroundings. if you see something unusual report it, bingo. the incident in the airlines, a vigilant passenger, not probably the majority of the flight over he saw something that was really bizarre, an aberration, unusual, acted upon that's what we talk about when people say just, you know, be aware of your surroundings. be aware of your situation.

and again, i think the challenge -- this is a very -- a very difficult responsibility for those who have access -- first line access to the information to determine what they want to share and to whom -- with whom they want to share it. but in my judgment, you're a lot better off 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 threads of information that came through involving a city or two. and there was a recurring theme. and the threat -- well, it seemed certainly plausible but there was nothing to suggest that it 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 advised what we were learning, what we had heard.

not for them to take action but so in the event that it was corroborated or for whatever reason we thought it was imminent we would be able to pick up the phone, call them and hopefully they would have trusted us to say, oh, we know you've been watching this for quite some time. you've been communicating to us. if that's the case, we'll act now. and again, it's the need to know versus the need to share. i think there are times particularly now that we've learned the sharing of the information is sometimes in our best interest even if it's not actionable because you build up trust, you build up credibility that way. >> governor, on this particular theme, having been on the inside where you say you missed having the information, but i think it's fair to say that rarely do we get the when and where. the reality is intelligence, there are estimators and they are not clairvoyant -- >> you have the where and

when -- >> you got them, exactly. >> i think it's probably the most difficult job in this effort, the global community has against the scourge. what's real, what's unreal, what's accessible, what's not actionable. at what point do we share. and it's not a science. there's no equation. it's an art. and those who have to make the difficult calls are the ones who have sleepless nights 'cause they are not quite sure they've got the arc right. and by and large i think these men and women do a remarkable job. and if there's where and when you have an interdiction and that's not a problem. >> let me just put to bed if you think this is a correct statement. i'm not familiar with politics ever influencing those decisions. >> yeah, yeah. it's very interesting how that

security system was designed and when i look back at my service as the secretary, i say to myself, well, i always thought you were a fairly effective communicator but you never quite got your point across and the point was this, for the first couple months normally i go over to the department of justice with attorney general ashcroft and fbi director bob mueller and the three agencies and the cia and others -- we'd take a look at this information and really believe that the threat was imminent. and we held press conferences and we'd talk a little bit about it. didn't have too much information to share. and then we'd walk away from the podium. and after, i think, the third exercise of that sort -- not only did we look at the bewildered traces on the journalists and -- i mean, i mean, we finally said to each other we got to do better than this. and i remember walking off the stage and turning to one of my

terrific individuals, special operations guy, john pence, we got to do better with this so we came up with the threat advisory and the defcom and looked at the defense department and other countries and this is probably write failed in communication. first of all, the decision to raise the threat level was only based upon a consensus among the majority of the presidents, the had seen cabinet. the president couldn't raise the threat level, i couldn't raise the threat level. it was a consensus. but the real challenge around the threat system is when the private sector and the state and local said, gov, you're telling us that there's a threat. what do you want us to do? again we didn't good a good enough enough for articulating it for the public. and the colors could have been numbers or alphabet but for every level there was a certain predetermined prescribed level of security that you would go to or come down. that's why we used -- that's why we tried to design a program

that we could use surgically is well. so secretary napolitano had secretary chertoff and i many months ago and a few others to talk about it. and they were looking to try to make some changes and we all believed the most important thing is not only tell you that there's a threat but if you in response to that -- whether it's national or local do certain predescribed security measures put them in play. >> and i think that's some good advice and i know we have some russian television stations here today. and they have just announced that they are rolling out a color-coded alert system. so i think tagging action based on information -- >> the level of threat should determine your level of preparedness your level of security. whatever the protocols are and they ought to be predetermined and that makes the system very effective. if you're just alerting the public that's a good thing but

the other thing you should know is that we met more often, the president's homeland security council and concluded that it wasn't enough to go up, number one. and number two, the cabinet agencies probably was the least -- was the most resistant and the highest threshold in terms of intensity of security and accuracy of security was the department of homeland security because we'd end up dealing with the governors and the mayors and the police chief so again i'd like to think there's some comfort in knowing that it was always rigorous, vigorous debate and we met more often not to raise -- and concluded not to raise the threat level than on the occasions when i would go in and tell the president the recommendation was to raise it. >> a couple more quick questions on the threat side on international specifically. and i've raised the ire of a number of my european colleagues on this. but the passenger name record,

pnr, agreement which was negotiated with the eu through 2014. there's been some changes between the commission and the parliament that are re-opening this agreement. for privacy concerns, no one suggests that the privacy concerns aren't significant. they are. but if you look at pnr beyond anecdotally, i mean, it did play a role in stopping faisal shahzad or time square bomber. it was a cbt officer who ultimately got him who he escaped surveillance. and zazi, i think it's blanking red. this was an al-qaeda center, an afghan nationalized 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's a clean-skinned

familiarity with targets, all these sorts of issues you've got the zazi case and the david hedley case and it's played a role in preventing and capturing terrorists. what are your thoughts are the pnr agreement? >> first of all, i think the international aviation community should be encouraged one to set the standard operating security procedures in the airports to begin with depending where you travel. we've all seen varying degrees of security. secondly, i think the pnr and the request for passenger name records should be universal. i mean, i just happen to think and if the world -- and maybe just the world is willing to accept that the risk associated with not sharing that information but there have been so many instances where the jihadists have struck outside the united states.

there's a continuing, continuing reference and use of planes either to transport the perpetrator or the terrorist. i don't think they will turn into a missile but potentially turn it into a target for an attack that i frankly think the pnr request ought to be universal and we ought to get them from everybody. i know that takes -- it's a lot of heavy lifting for the state department, a lot of heavy lifting for department of homeland security but the end of the day, if you want to again -- it's about manage the risk. it's about reducing the risk. no matter what you do, you'll never develop a fail-safe system but you want to reduce the threat and reduce the risk over a period of time i think it ought to be -- this information ought to be international and by the way, we should not ask what we're not willing to give. i remember having a conversation with my colleagues in the european union when i was secretary about passenger name records.

and initially frankly i think we had asked for information that wasn't terribly relevant. all i can say it's a way to set the standard. if we want universal passenger name information, let's decide what we would be willing to share with american citizens and then ask it of them because they will certainly have every right to reciprocate particularly since we know that reasonably you have not only sympathizers but american born terrorists or legal residents who have left the united states and gone to be trained elsewhere or gone actually to fight elsewhere. so similar information should be shared. >> and just to underscore expanding the pnr process beyond the european union. and to 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. >> does that make a difference? where you've been? >> absolutely. >> it's not about -- everybody

gets a little concerned about the term profiling. but there's a certain pattern of travel, certain pattern of activity -- whether it's customs and border protection in this country or customs in other countries, that those officials -- it's officials of a sovereign country, when you enter into a country it is a privilege, it is not a right. they at least have the right based on your pattern of travel could perhaps even 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 but we do it every day in law enforcement and in intelligence. and without it, we'd be blind. so it's how it's enforced and how it's utilized and how it's protected in terms of oversight. but i don't think you can do this business without doing profiling. >> it's all -- it's all about taking the universe of potential risk of individuals and just try to reduce -- chances are you may

finally get that one actor or two actors the terrorists or the perpetrators just trying -- you're trying to manage the risk. and having access to patterns of travel is the way you begin reducing the risk or at least your oversight of what might potentially be risk. >> before looking inward, a couple -- another general question. i mean, you've seen an escalation in uav and drone activity in the fatah region. in an ideal world if pakistan had the capacity or the intent, the political will they would be the ones driving some of these efforts. but time and space is what terrorists need. and if you look at whether it's the fatah region or yemen or somalia or the sahel, it's ungoverned space. that's what they're seeking so they can train, so they can plot, so they can coordinate. would you support the -- and i've been again very outspoken

supporting these -- the drone 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 then looking to yemen and somalia, which are very difficult situations, i would suggest light footprint but a significant footprint, again, the capacity doesn't exist indigenously by the yemenese or the somalis, where do you think we go from here? >> it's pretty clear that use of these have been pretty effective. the challenge has been for the previous administration, this administration, and future administrations walks the diplomatic delicate line when you're using somebody's air space. it was just interesting that there was a public report that there were canadian fighters following one of the planes coming in from europe that we thought had one of the packages

but we got to the u.s., over u.s. skies, and it was handed off to the united states. so sovereigns, whether they are strong powerful known globally or just even failing or troubled states they don't appreciate violation of their air space but there comes a point in time where you got to walk that diplomatic line and if it's about reducing the threat to this country, to other countries in the region, reducing the threat to our soldiers on the ground who are actually dealing not just with the threat to america but the threat to the broader world in general i think you have to be diplomatly and deal with it 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. that a sense of we be lulled 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 the broader global community, be it -- particularly when it comes to security drove individual voters. i think it drove them by -- if they're driven by issues it's more economic. and right now it appears with the -- i'm not going to give you the recitation. we all know what's going on in the country, percolating along, unemployment is too high, certain initiatives undertaken by the government don't seem to have worked, blah, blah, blah. we'll save that for the elected officials running against each other, but what i found interesting is that listening to the few debates where they're actually talked issues, that's another issue we could talk about. it would be nice if candidates focused on issues rather than

one another and maybe 2012, after stewart's rally remembered civility and ideas on what you're supposed to be doing. talking about security and prosperity are linked. you can't be strong economically if we're not strong for national security point of view. and there are plenty of anecdote to explain that. in a global economy and fighting a global scourge in a much complicated environment these days, i'd like to think that in time we can convince most americans in order to be secure you got to be economically strong. if you're economically strong you've got to be secure. i'll give you an example as an anecdote but i think it's telling. shortly after 9/11, president bush asked me to stick around for one of the morning meetings and said, you know, we did a good job at security with our friends in canada but we've got commerce to a screeching halt and i would like you to try to work out an arrangement with our canadian friends and ultimately

our mexican friends with a smart border agreement as we called it. went to an assembly plant in flint, michigan. they put the chasse eight or ten hour process and they put the chasse on, great. the seats are made over in canada. good. somewhere along the line, seats are made probably put a computer chip on it and and dropped it down into the truck and it goes across the bridge or in the tunnel. out to flint, michigan. well, you drop the seats maybe hour 8, hour 10. what if the seats are still stuck on the bridge or the tunnel because you've ramped up security, what happens in the plant? nothing happens. and so i think we need to understand that in the 21st century world, and forevermore, security and prosperity intersect at our borders. right now the economy is so troubled. i mean, there are people out of work. people that are worried about

their mortgages and even if you -- you're safe and secure with your own mortgage and you feel pretty good about your job, you do worry about your neighbors so it's no wonder the economy is the issue that seems to be driving, among others, but i'd like to think down the road we think more in terms of at least add that to the part of the equation. i don't know too many people who voted for president of the united states because how they feel about their ability to interact and influence in the geopolitical world affairs on the globe. i just don't think most people do that. and i think we better start. >> sticking with that theme, what's the likelihood that we'll 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 88 committees

or subcommittees that had some semblance of oversight on your day-to-day activities. and if you think about it for a nonhomeland security imagine trying to run a company and having 88 outside boards of directors with very different opinions trying to micromanage your operations. and you 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 now proliferated to 108. >> it has. >> so i'm not sure -- it keeps going up, bigger, bigger, bigger. would you like to think -- 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 to be able to reform some of their activities. does this still bother you? >> i'll at the you what bothers

me is congress formed the 9/11 commission right after the tragedy and horror of 9/11. there's a long list of recommendations. unlike a lot of other commissions, a lot of other studies, congress pretty much ignored some of the critical recommendations in the study. they ignored interoperable communications, they ignored the reality that you really don't have strategic partners involved in not only the planning and the growth of the department of homeland security but for oversight. i mean, you can't possibly have oversight over -- when it's over a single department. in these early days in which you could use strategic partners. is it forthcoming, absolutely. should it be considered constructive? absolutely. when you have 100 plus committees and subcommittees you don't have that strategic partnership. and i think -- i'd love to see this congress go -- i could say

this because i was in congress. if you walk through the halls of congress and you see congressmen and running from the committee and subcommittee hearings and they are all complaining we have too many committees and subcommittees, trust me it's all on the letterhead but ask them to give up jurisdiction or reduce the number of committees and subcommittees and they are pushed back. i'm not saying that's a criticism. that's just a fact of life. if they really wanted to be engaged in this or other issues they ought to streamline that process. the thing i would like the new congress to do, i still have 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 got on the

plane. we talk about connecting the dots. a term we used right after 9/11 but from my point of view, every once in a while the information you get is like a big red dot and it flashes. and somebody should be acting on it. so 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 to see if you believe as i do that information-sharing is the most critical and important thing you do in the war against these jihadists and go back to see how that system is working because it seems to me it's not working very well. >> i would underscore it's the life blood of all of our vis-a-vis counterterrorism. >> i still don't understand why they didn't yank the visa. we won't have a lot of human

intelligence. the father comes in and says i think my son is radicalized by the way he's in yemen. we all know about al-qaeda in the arabian peninsula. blah, blah, blah. and, you know, if you yank his visa the only country he can't go to is the united states? i mean, it's not -- it's not even about the debate sometimes you'll run into about being politically correct. it's when you have certain pieces of information, should you not act on it independently or do you hit the send button or push the decision-making up the chain of command? well, here pushing the decision-making up the chain of command almost cost us is level up. sometimes you have to act and ask forgiveness later. >> and it did cost us lives in fort hood. and one of the challenges and this is not only from a homeland security perspective but rear view mirror planning. we often march into it backward

with yesterday's wars. and recognizing we got a thinking predator. our advery sorry, whether our senior al-qaeda leadership and whether it's al-qaeda's formal affiliates or the stew of the haqqani network and they are all subscribing to the al-qaeda jihadi view so how we do prioritizing planning in the future? take last week alone, and too often washington treats these as either or propositions. last week you had the farouk ahmed plot to bomb the dc metro. >> right. >> and historically, terrorists have often seen rail and train and 77 in the uk, two major

plots in the united states, the brian case, this is another new yorker who traveled overseas to commit terrorist acts; came back and was targeting the long island railroad, the same train i traveled every day as a young man. or zazi, this is another i would say al-qaeda central plot again subways. but we had a reminder just -- on friday that aviation is well. so these aren't either/or propositions but how do we get to the point where we enhance some of our surface transportation but not at the expense of aviation security? where do we go from here? not to mention that the big systems and difficult -- we cannot have a tsa equivalent? we'd never get to work. i mean, it would be five hours. >> i think public transportation has been and will continue to be a challenge because there's a certain level of security measures that you can embed

before you compromise the purpose and utility of public transportation. i don't know about any of you or all of you i know i've rushed down the stairs to get on a subway in a lot of cities around here. i think now that i'm a private citizen i'm doing a lot more rushing by myself. but the fact of the matter is it's a fact. and so you say to yourself, if you accept the notion that you cannot -- i 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 -- you only have finite resources because government has so many other awesome responsibilities to this country and so many different dimensions that you say to yourself, have we done all that we can, vis-a-vis, public transportation, knowing

that it's not failsafe? have we done all we can without compromising its utility? so in time, there may be more sensitive kinds of detectors. there may be more technology. you do have more surveillance. individuals and some bomb-sniffing dogs but, ladies and gentlemen, it's not an assumption of risk. you're managing the risk as a country. and i'd like to think that god forbid something would happen -- i think it was in july of '05, the bombings in the uk, and i think they had equipment within 24, 48 hours and it was business as usual. and you have to say to yourself, we'll do all we can to reduce the risk, to eliminate it but as a country we know that our professionals well intentioneding, well resourced even in a perfect system are not going to be able to avoid a terrorist attack.

if one occurs, we'll deal with it so let's just take operational security to a level that it doesn't compromise whatever that public transportation mode is and then stop there. you have to accept some level of risk. that is the new norm. >> no shortage of time -- i want to ask two more questions and then maybe open it 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 suggest that mexico is today the midst of a full born narco war. firstly, would you agree with that characterization and secondly, you've got a dhs role in border security and other components but there's a bigger role beyond just dhs. where do we go from here? >> well -- >> do you agree with the characterization? >> yeah, i do.

one could say that colombia differs a little bit because the narco insurgency in colombia they wanted to overthrow the government. others would say -- i like the narco insurgency because i 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 might not try to overthrow the government but you got these cartels up and down the mexican peninsula. they're certainly going to undermine. and so i think it's an extreme situation that requires us to reach out and do everything we can to help president calderon. the challenges -- there's several challenges associated with it. one relationships we have between the intelligence and law enforcement communities on both sides of the border. it's probably not as mature and in certain areas lacks the credibility of perhaps the relationship we had with our friends of the north. my friends in know don't like me to say that and we haven't

worked together that long and even the president admitted they have a lot of difficulty and a lot of problems with corruption, et cetera and bribery with the local police forces. so i understand the sten waiting circumstances that the mexican government is operating under. i think couple of years ago the congress appropriated or passed the marita initiative. i think that's with a 1.3 billion to $1.6 billion. i've seen estimates that 2 or 3% of that money has actually been expended so the question becomes, what are we waiting for? the second question becomes, is the effort to help our friends in mexico stall because of a turf fight between the three or four agencies that would naturally oversee the relationship with mexico, state, homeland security, justice. you can name them. who does that under the umbrella of the marita initiative is pretty important. and i think one of the best ways we can do is kind of shortcut this and put -- put a marita

czar in charge and have them start allocating the resources and begin building the relationships and cut through what i think is probably going on some turf battles that have slowed down the outreach and the relationship. you don't have much money out there for equipment and training, et cetera. they need as much help as we can give them. and it's pretty clear i think there have been reported murders on our side of the border not american citizens but it will get closer and closer every day. and there's millions of dollars of cash that comes back from mexico that continues to fund it. i'm comfortable called it a narco insurgency. it's bad in my judgment. your next event -- [inaudible] >> it will from a whole different perspective. >> had we not initiated a plan in colombia -- and you saw, of course, it dispersed. initially we're dealing with the all these cartel expense you're

starting to deal with obviously a country within a country. but i mean, that's the challenge with organized crime. they usurp the authorities of legitimate governments and that's what you're seeing in mexico. >> and they want to control their space. they don't necessarily want to run the government but they want to control the space and to a certain extent they want the government to get out of their way they may not topple a national government but they don't government to interfere with their illegal activities and having that right along our borders is a recipe for continued unrest and greater drug smuggling and greater illicit drug trading and murderous activity on this side of the matter. it's a matter of time. >> and it's a matter of attention. and again, correct me if you disagree, but -- i mean, also in our neighborhood you have hugo chavez. you've got some real challenges in venezuela. i would argue even a potentially

unholy alliance with mahmoud ahmadinejad and they seem to be the best of pals. i spend so much time worrying about the middle east and the southeast asia, but this is close. isn't it? >> probably not as close enough to that issue to give you some inside explanation why historically explanations of both parties fairly ignored our relationship with central and south america. we've always had that relationship with mexico. a little bit with central america but, you know, these economies and democracies down in south america, rarely do we pay attention. the president may make a state visit or two, and that's about it. and i think -- i mean, we just talked about colombia. and if you believe as i do that

america's future for both prosperity reasons and economic reasons is tied to our ability to engage globally than not, they tried to do it in colombia, why don't we have a free trade agreement in colombia? why don't we create not only law enforcement friends and intelligence friends but we want to make economic friends is well. you take what's going on with mahmoud ahmadinejad and chavez. he's boisterous and stirred the pot. one does wonder is it a leave of the imagination to think that iran/venezuela -- could venezuela become a training ground for some extremists in south america? is it a leap of faith given iran's support for hezbollah and hamas elsewhere? it's not a leap of faith. and so while those sovereigns of those countries are going to do

what they do and build that relationship around energy and harassing and getting -- you know, and challenging america at every step of the way, is it incumbent upon us not only to work with security and intelligence and military law enforcement to create even stronger economic ties with other countries in the region? and i for the life to me can't give you a good answer to your question. use opportunities for relationship-building you got to be there and sustained your presence and we have to be more aggressive in a public way starting with the white house. >> let me just note and there is history, cuba, we neglected and the soviet union with missiles in our backyard. all right. final question and then we're going to open it up and this is looking much clear -- [inaudible] >> i've never had an unspoken thought as everyone knows. looking to one of the other big gaps, there's a lot of discussion and rightfully so in interoperable communications of our first responders. shame on us that we're still

talking about this today, my view. and we seem -- the obama administration -- and this is not a political view, but seem to be at odds with some of the spectrum-related issues that could be devoted to our first responder community. is this something that you share my concerns? >> it's worse than that. i think shame is a good place to start. you have a 9/11 commission. everybody hears the horror stories about the failure of first responders at the twin towers. frankly, there are other horror stories associated with other kind of incidents, not even terrorism-related, the same concerns existed. the inability of first responders and emergency service personnel to communicate in a timely way. and the fact that the 9/11 commission recommended it, the fact that the broader public safety community has literally begged for it for nine years,

the fact that an investment dedicating spectrum to a broadband public safety network would not only assist us in being better prepared for an attack -- by the way, not just for a terrorist attack. how about a mass casualty event? how about a natural disaster? there's a whole range or a single horrible car accident? where the first responder community emergency service personnel would be tied together with broadband, their network to stream video. voice data, i think it's -- i think it's unconscionable and there's a lot of out saying we'll let them use part of the spectrum. nonsense there's plenty out there in my judgment for the commercial world to use and if they are looking for a piece of dedicated spectrum and what they don't use they could lease to

the commercial sector. we all to start with some spectrum just for the public safety community and again, another 9/11 commission recommendation that has fallen on deaf ears. a lot of services -- a lot of public tributes, rhetorical tributes to first responders and we build memorials and we send contributions. i think that's great. but i'd say to congress and everybody that goes to those things, particularly -- you want to do something really significant? maybe there will be fewer memorial services to go to if you build the broadband public safety network. that's the ultimate commitment to those who service some very difficult tasks and it's an investment that improves the quality of life in america generally. we make it because of the problems that were so visible after 9/11. but does it not literally improve the safety and security of our communities acrossco tun

incidents requires its use. >> safer, stronger, better. let's open it up to questions and if you can please wait for a mic and then identify yourself is well. ronald? [inaudible] >> you're getting the mic. you're getting the mic. hold up and please stand up. >> ron, how are you doing? a quick question for you, you touched on a few instances of this. what i was wondering if you would make some comments on the interaction as of the private business sector in the united states? there still seems to be somewhat of a tangle at this point between what kind of information gets passed to them, and how it's shared, et cetera. >> public/private partnership. >> the government -- we can't -- the government is well intentioned, is well resourced. you can't possibly cure america without the total engagement and participation and support of the public sector. and, quite frankly, a lot of

that has happened with without a lot of public initiatives or public money. but again, it's that -- you know, one of the big challenges we ran into when we first stirred up the department, number one being a lot of the other departments didn't think we really had a need to exist. and that we ran into more importantly almost a war mentality. i'm saying that to be critical. a mindset, inertia sits into organizations that have been doing business a certain way for decades and decades. and the old mindset, the cold war mindset, we'll tell you if we think you need to know. and by and large, as one individual from one of the three alphabet agencies told a two star who was working with me and frankly i don't think you're ever going to see to know much. the bottom line is, is that when we have engaged the private sector and shared information with you, you've acted upon it responsibly and that's one of the continuing challenges of dealing with a threat, responsibly.