what the ways in which environmental pressure can affect that. well, maybe as you just eluded to, concern about the environment creates an increase willingnd to pay on part of certain customers for environmentally preferable products, and if that's true and if the firm delivers those products and somehow prevent the competitors from inventing it the next day, that's a good idea. on the cost side we've heard a lot about the relationship between environment and cost. one thing that we hear is that the free lunch is widespread. if firms shine a flashlight around their factories or supply chain, they identify cost savings that otherwise would have escaped their attention. i think it's true there are firms for which that is true. i think the number of such firms is quite large. i think that the magnitude of

those free lunches is probably limited, that is, one can't eat free lunches forever. then the question is one is to make the supply chain more green in some sense which means reducing environmental impacts or reducing the amount of natural resources consumed, then presumably the current process by which the firm delivers its products and services was at some moment something like optimal given the prices the firm faced, and then places change and it might be that the free lunches exist; right? if the firm is going voluntarily to increase its cost by reducing its pollution to levels below what their regulators require it to do for example, then they have to figure out who is going to pay for that. ..

>> or for some other reason. but i think it's important when we are thinking about the many ways in which firms can contribute to environmental quality that we try, at least, occasionally, to relate that back to the fundamental business of the firm. which is to create and maintain the wedge because pay and cost. >> mr. siemen, i'm going to ask the first question. then down the line. what's the biggest area that the

companies can make the improvements? we're going to get the policy stuff later on. how regulators can give the incentives to do the things that are electricity simply things that have to be done outside the firm, or that are things that because of the competitive advent, you need to all jump at once. what are things that companies are doing right now that are making a difference? >> i think one thing that we've seen that really characterizers those that are doing the most. doing the best. have the best potential for building profitable business around sustainability, they are looking to creation cultures of innovation around the environment within the company and within their businesssphere. through con system. greening operations is really a matter of table stakes. it's important for efficiency and cost reasons, it's important

reputationally, as well as for learning and building habits. but in a lot of cases as in whirlpool or companies represented on the panel and in the room, the environmental footprint is orders of magnitude greater than the impacts of it's operations. and so it is thinking about that footprint of product from services and also the embedded environmental and social impacts within their supply chain and baking that into the culture of a way the company does business that has the greatest opportunity. it's informing what we are seeing, new linkages inside, where you have, for example, r&d work with government affairs so that r&d can inform government affairs what they can make in five years that's higher performing, and then government affairs works with policymakers to design regulations to give competitive advantage to people that produce that. and then outside.

so new types of conversations, and ways of collaborating with suppliers and with new types of customer conversation. you know, they are -- this type of work is critical for particularly for industrial companies. it's a big challenge to change the companies, utilities, chemical, some of those that aren't used to having that kind of ecosystem relationship. >> ms. calfo, you talked to me about the problem of small businesses. the supply chains are so long. you know, on the one hand, you have a giant like siemens or gm, they can afford all of the regulatory consultants and so forth. as you push it down, you know, when you go down the supply chain to where you have 30-person manufacturing operation or even smaller, how do you help those -- how do we make it so it's easy to get the whole supply chain green and reduce that enormous footprint that mr. siemens is talking

about. >> i think i'm going to come at that backwards, if it's okay. just for context, apollo is named for the kennedy space mission. it makes the assumption that we need to muster the can-do american spirit at all levels. business, labor, everyone to tack the problem. we haven't referred to here with the challenge of climate change. we are part of a global economy that's trying to do that. so the business people, the workers, everyone is in interacting not just at a national level, but really in a world of global competition. we are seeing different countries emerge as leaders. amazingly quickly. we all lead that china is soon going to be the leader in solar energy. stop and think five years ago, china didn't really even have a solar industry. all of this change is happening very quickly. in the united states, one of apollo's priorities has been to relieve america's dependence on foreign oil.

and as we've seen growth in the clean energy economy, even during an economic recession, we've seen the country coming dangerously close to substituting a dependence on foreign oil for the dependence on the renewable system. creating solar installations or wind products where, you know, overall, 70% of the component parts are coming for overseas. so we asked the question, you know, what do we need to do to build a domestic supply chain. because when you think about industries that are becoming obsolete, a little bit of retooling could easily make parts for wind mills or solar installations. so we convened a task force last year called the green manufacturing action task force where we pulled business and other people together and talked about what will it take? one the interesting things that came up, for a lot of the small

and mid size manufacturers, they don't know what opportunities are out there, first of all. they need to be better informed and better matched up with the larger manufacturers who are creating the demand. there are manufacturing extension partnerships out there, which probably many of you are aware of that exist across the country that could use more resources to start playing a better role, matching up supply chain. they have a horrible lack of access to capital right now. we are in an economic crisis. people aren't rushing to lend money as what is small and mid-sized manufacturers who want to manufacture to be used in a wind mill. even though we are seeing more and more places where these parts of the companies are growing. so -- i don't want to get too much into the policy side of it. aside from highlights exampling where companies are changing, for example, milkington glass in

ohio made wind shields for cars. now the fastest part is making glass for solar installations. there's hundreds of companies like that. we've been working on policy solutions to help drive job creation and business success in that supply chain. >> that's one side. how do you green your global supply chain? how do you go out there and try to make sure that -- are companies doing this? how can they do it better? >> i think there's two things. one on the supply chain side to we're talking about for siemens. we just opened a plant in hutchinson, kansas. our elgin, illinois, we do gearboxes for the wind turbine. we are localizing that content. because that is part of your sustainability; right? the transfer cost, all of the other activities, and plus it's

job creation, 450 jobs in one location. 150 in another just from that simple activity. i think on the supply chain side, probably about half of the companies, 53% of the companies out there are starting to challenge their supply change. what type of materials, what percent recyclables do you have in your content? what i don't think -- siemens is in the stages themselves. getting to the root cause and finding the supply chain basis and work with policymakers and the government to say how do you go and localize it? a lot of companies with a lot of activity offshore forget the green aspect. anybody in business has a lot of supply chain challenge. you have parts in vietnam, india, china, sometimes you can't make your products. that's a problem. i think it's a common activity. not just sustainability.

it's localization of supply chain, and it's an important part to focus on. >> semans, i think you had a response mr. . >> i think greening supply chains, there's a lot more potential sad that through private -- what we call green order, private regulation, initiative that is are given by the large scale players further down, closer to the consumers who are large in scale like the walmart, coke, and starbucks, able to up the supply chain and affect global agriculture, energy producers, commodity producers, and manufacturers in between the company and them in the case of walmart. we see that they've surveyed their customers, set

preferences, transmitted those preferences through score cards up the supply chain, then aggregated best practice. and made it available to suppliers to green up in the case of coca-cola, and they've convened the heads of their largest suppliers and said we want to work with you. we want to exchange ideas on how to find new ways of greening products or green production of the products that we use. introduce them. if you can go up with something that's better than industry common practice, we'll help you scale it and we'll help you push it out across our industry. and, you know, that's -- an example of that is the introduction of stevia in the marketplace. these players have a potential to essentially establish regulatory-like framework that go up, all the way to china and

around the world. you can't them to court the way you can take epa to court. >> as we are talking about localizing and keeping the local supply chains, the first thing that brings to my mind is building. the gm plant where we made an enormous sort of deal of telling me all about the gold star lead certification and so forth. how important is that sort of initiative to, you know, green industry? and how much government encouragement do we need to push that forward? >> i'll jump in. i think it's a great example. look at it. it creates jobs, it helps reduce energy consumption, thus reducing reliance on other countries for fuel. so it meets the goals of the framework that we set for being policy priorities or project priorities. and then in terms of regulation, it's, you know, -- companies are going to always look at the business bottom line. you know, in terms of making their operations more energy

efficiency. there's some companies that we see, significants stories we call them on our web site of companies that are greening or creating clean energy. it's a country called flambeau river paper. paper production is independent. they came up with a system of using woodchips and renewable energy sources, were able to bring back the previous work force, i think it's 70% less energy consumption. so it meets the bottom line. government can make requirements that we do this. and it'll -- in my opinion, there's a lot of views on this, i think that would be a good thing, generally, done right. you'd create demand. there'd be less energy consumption and more job creation as a result of this. those energy efficiencies jobs

are as everybody has heard before, said often that jobs cannot be outsourced. >> so mr. kopanski, did you want to comment >> yeah, i think on the lead certification, siemens did a survey. 60% of them would say companiability really is a market difference. to make the example taken, i went to the top fortune 250. there's one account. everyone now has a cheap sustainability. when i started a lot of them were new. kind of going what do i do? i have the goals that i have to have this position. now we are seeing the transition. so example one particular very large privacy held food and beverage had 100% manufacturing locations. he was talking. look, i have to location by

location. i want an audit on my facility. how do i get my building more efficient? how do i get my processes more efficient? how do i get behavioral audit to change the behavior? and the fourth was the sustainability piece of what kind of green can i do or renewable? can i put up a solar plant, wind plant, and the flambeau job is something that we worked on. how do you relate that to energy is closing the loop in the cycle. that's where there's a lot of efficiency. and it's clean for the company. there is the economic benefit when it's don't right and well. that's the challenge is the risk of doing that and that's where, you know, we have to help maybe support that in certain areas to mitigate some of those risks for the companies willing to go do that. >> mr. reinhart? >> wait, so the primitive economic response to these kinds

of anecdotes is well, if lead is such a great idea, how comes the firms weren't doing it already; right? seems like there were several possible answers. one has to do with representation. maybe representations for being green are more valuable than they used to be. that could well be. i guess i'm a little skeptical in at least some cases that there's actually more willingness to pay for the companies products because the headquarters has some sort of lead certification; right? i don't think the thing about the beautiful lead gold building not too far from where i work in cambridge, massachusetts. i don't think they are choosing their farmer products because of the headquarters. but i do think there are benefits to this kind of lead standard. just in reducing the amount of information that the corporate executives need to amass in order to decide what kind of

buildings to construct; right? information is costly. and processing information is costly. so if there's a well defined standard that says, you know, this is what a bunch of architects that have thought about this hard think as a reasonable way, then it makes it easier for firms to do that. then as long as we're on the particulars of real estate, i think there are savings on the real estate side in labor -- in enhanced labor productivity if the buildings are designed properly. there might be some sort of win/win situation where workers are happier to resonate to work in buildings that comport to their ideas what a building ought to look like. >> we found that is absolutely true in working with clients as large as large mining concerns all the way to financial services firms. one the clearest areas of return for not lead specifically, but

these types of internal greening are in attracting and retaining great talent and improving employ productivity. tires and parent has done some interesting work on this. and in addition, if it's not, you know, siemens that comes in and does it, but siemens works with the shop floor, in figuring out how to do it, for example, through the treasure hunt approach. you actually have a return in building in the thinking that builds these cultures of environmental innovation. >> so what sorts of internal building and other practices? what are the most? actually i'd like everyone to answer this question. what are the most promising things that can be done on these? you know, if you were to name one thing you thought was the most appropriationing sort of practice that companies aren't

doing a lot now, that companies will be doing in the next ten years, what would you say that is? >> i can't speak so much for that. i think there's a huge opportunity that hasn't been realized in home weatherization. i think there'd been a lot of hope around various programs and other things that had been stopped. i'm curious if other peoples have thoughts. i don't see businesses tackling that at a large scale. maybe that's one the areas if we are going to really reduce in homes and do basic weatherization, we do need more policy incentives. but that seems to be a tremendous area of opportunity that's not being addressed in a comprehensive way right now. >> i would say that smart grid is a critical come phone this at the end of the day because of the example of getting back to the residential. someone mentioned it in the last legislation about jiminy carter. whether they are putting the solar panels on.

having the intelligence as they distribute the power, we need a smart grid that allows us to take the company where it's needed. the infrastructure isn't there. even at the residential space, the ability to sell back electricity is real and plausible far lot of homeowners. because of the difficulty sometimes with the system, you use it for your own consumption. if you can't use it when the sun is not shining, it goes to waste. there's one area to focus. if we get the grid intelligent, residential, commercial, industrial areas, all parts of business. it's going to be a big driver for ecar, all of the different things we are talking about as we go more green. >> i think in combination with that, we do a lot of work with companies on various aspects. smart grid and business models. the smart grid is only as smart as the people that use the power on it and make decisions about energy and power. so we think one of the most exciting sets of technologies is

not a piece of hardware or software. it's behavioral approaches. we worked with a utility and one the largest it in developing a business model that will ask -- will aggregate. this is duke energy in san francisco. they will aggregate the large buildings in central cities and utilizing the capabilities that smart grid enables to share best practices, to have competition, to reach certain goals, and, you know, both automated and human decision making. >> so your question, as i understand, was at least partly about what firms ought to do internally in order to accelerate the greening process. i guess what i was thinking about that, is the firm headquarters has many of the same problems that the public policymakers here in washington does; right? he or she is trying to affect the behavioral of a whole bunch of people that they meet.

doesn't know personally. the challenge is trying to set up the incentive system that will operate. you know, people have been at this since the ancient greeks. we actually haven't made all of that progress; right? we have use some kind of price mechanism or hierarchy which is called command and control. we can use the other things which are called culture or love or something else; right? and the firm had exactly the same problem is that the government does. it doesn't know as much about the operations at the plant as the plant manager does. it really doesn't even know enough to create a price mechanism. it's command and control. you go to the plant managers office. you see the big binders. h & f procedures volume one, two, three, those are command and control. why are they.cc that?

because they don't yet have enough information to design price mechanisms and because they have been insufficiently trustful of what are called the softer incentive systems; right? so i guess i think that one the things we ought to be thinking about is ways of intergrating the culturally, the unspoken norms that innovate -- the culture of innovation. with the more traditional command and control in price-based mechanisms, in order to make a more compelling package of incentives for managers and firms. >> so let's talk about how we do incentives. because i think this is -- you know, sort of the biggest problem that we are facing is the attempt to design incentive mechanisms. i'd like to -- the first question that i'd like to ask is what are the biggest failures that we've had in the area? what are the biggest mistakes that we either as corporate

people or as a government or somewhere in between have made in trying to give people the incentive to go green. >> i can talk about a mistake that we've made in failing to do that recently. i think looking around this room and i see a lot of people that i've worked with over the last few years, trying to take what is, i think at least, some of the panel probably for us at least would agree is one of the most efficient says of incentivizeing behavior at all stages along the business. that is a clear price signal that signifies and transmits both the cost of negative externalities, and the positives of externalities. we're in an unfortunate situation in the country where we have failed to adopt a system

on tax or cap-and-trade and not likely to do one in the coming years. in the absence of that, the federal government is going to -- the administration will try to use the range of different authorities that the epa has at it's command as well as a limited set of policy and programs if there's no money to do much of that. so we get into discuss of a complicated patch work that all adds up to a price signal. but it's hard to disconcern in terms of state based policies, little incentives in the tax code here and there. >> i'll just jump in and say i couldn't agree more. that's the biggest challenge that we have. and probably over the next few years, we're going to see more and more policies, potentially at the state level, stronger renewable portfolio standards, stronger measures to try to create demands that will spur business growth, employment, and

energy consumption. >> i think, you know, if you look at a couple of failures. you look -- i will take the electric cars, we talk about the potential. i'll take ethanol as an example. that was hot and heavy six years ago. ethanol plants in every cornfield. all next to the woods. businesses, innovatives growing like crazy. what we didn't understand, the pull global supply, minor detail, ethanol costs twice as much to transport and make. how do you fix that solution in i know there's a lot of different looks at what type of ethanol, sugar cane and everything else. eventually the cost points have to get down. whether gas prices are going up and these prices go down. where do you place your bets? i went to a show in dallas about three months ago. it was like the wild west. who do you place your bet on.

what technologies is a big challenge? i think that's where we struggle. it's not always good technology people helping look where the money connects. it's maybe political and this is not necessarily saying this is the technology that has the chance of success. how do you get more technology into the decision process, i think, is critical. >> so somebody said before that we are agreeing too much. and i think one the things that sounds like most people in the room would agree with is the price of energy is too lee. -- too low. we are subsidizing by the absence of carbon price. that's true too. i agree with that. given that it looks in the short run we're not going to have a positive federal sector agnostic carbon price, the question is then what might we have instead? i guess i would -- i would like to see a little bit more transparency. i think that the renewable fuel standards, for example, is another attempt in a way to pretend that we can kind of have

our cake and eat it. we'll just tell these blenders who are big oil companies that they have to buy a certain amount of this stuff. then the supply will appear. which it has. it just hasn't had exactly the economic consequences that it's proponented might have wished. i think in a way the fundamental problem is that we are trying to hide the cost of environmental quality from ourselves. >> uh-huh. >> is that there's this infatuate with the win/win solutions. i'm not denying there are times when the company can make an investment in energy efficiency and save money. i think that's true. i think if we get where we want to go through a series of win/wins, we are kidding ourselves. >> we are kidding ourself now by not acknowledging the cost of dirty energy. in terms of health impacts, air

quality, it's true now. and it needs to be faced going forward in a broader sense is what you are saying. >> if you look at -- it's true if you look at something like cafe standards. which virtually every economist is like a third best, eighth best way to handle the problem. that's what we settle on. it's something that we -- we americans seem to have a preference of hiding the cost of things that we do. that preference is very expensive. we end up with very inefficient ways. the big three are selling lots of terrible cars. there's more cars on the road. that makes the fuel efficiency lower. rather than raising the price and encouraging people. i think as we all agree at this point, it doesn't look like in the near future, that's going to change. we don't seem to be able to pass in cap-and-trade and carbon tax even though i would venture that virtually everyone in the room

thinks that we should. going forward, what other policy things can we do? how do we build the best patchwork? i'd actually like to start by asking about what epa regulation means for companies? you know, right now it's not even clear to me, at least, whether they are going to be allowed to say, well, we are not -- you know, if they go forward with the standard that is were set for something like sulfur, it admitted more than the base amount of co2. how are companies looking at this problem? is it on net going to be good or bad if they end up enable to do the regulation that we might all like? i'd like to actually ask mr. semens to start on that. >> i want to start actually

saying i very much agree with forest. one the things the epa should do, it's risky and not characteristic of epa in the past. to seek to be extremely transparent about the whole tapestry and the options under consideration for a couple of different reasons. for one thing, it gets ahead of the -- some of the opposition that they are going to face through people who are against any form of regulation. second it will tend make it easier to federal the -- to plan. and third, it will be transparent about the cost. some of the things taken individually are not win/win. they are win/lose. they maybe the most efficient that's politically feasible at the time. and you know, part of that will hopefully be to bring to light the very complicated fight

that's going to go on in the months and years to come. where the electricity power industries wants to be regulated by the epa and the absence of cap-and-trade. many of the large customers, and some of the business associations, national association of manufacturers and others are not in favor of that approach and will fight very hard publicly and privately to block that regulation. thereby we kind of back loading the cost and having those fall on the power companies, the customers, industrial, commercial, and residential, many years out but more stringently. >> mr. calfo, i'm sure you have thoughts on this. >> you know, it's like i'm always a little bit off. it's difficult. i can't speak from the company perspective. i will say in terms of other kinds of policies or regulations that can be helpful, looking at the supply chain side is answering this question about how did we provide access to capital for companies.

can we create revolving loan funds they can access and pay back and start producing the component parts here. one the policies that we've worked on, talk about the strange fellows of the national association of manufacturers actually joined us on was a proposal by senator sherrod brown, and also provides loans to make the operations more energy efficient. you have a direct energy savings. there's a lot of creative things we can do. whether or not, you know, there's going to be the momentum without some big overarching policies either at the epa or other place that is spur demand, given there's tremendous demand in other countries all over the world whom we've competing with. it's really as much of an economic struggle as an environmental sight. and the more that we see as such, the more we see ourselves as this is a growing industry in the global economy.

if we want to come pete, we have to have policies that drive demand, so that companies will want to locate here. so that suppliers will want to locate. so we see the kinds of benefits that other people have talked about. >> yeah, i think we have to do business friendly. because of the exact challenge that she just mentioned. i think from the company stand point, regulatory stand point, i think historically, a lot more of the aggressive companies are usually out in front of the regulations. they set the minimum standard that 90% of the people are at or above. what does that bring to the table? i think your point about are we going to put some meat to this. i do agree with the transparency comment. we don't know what we don't know. we say that as large companies and federal government and as a planter facility. really understanding the real dynamics of what we have and do not have, i think, are one the challenges that any industry or entity faces to say how do i

really fix it. i always use the analogy, it's kind of like alcohol. you can't go for treatment if you don't recognize and admit that you have a problem. which is a lot of the point today. there's a lot of denial or people game the system. we are green. let's put our stamp on. at the end of the day, if you pull back the covers, there's not a lot of real behavior there. a lot of the consumer base and everything else, i think we have to help create demand at the consumer level. businesses will do what consumers are willing to pay for. that's the basic, you know, economics there. today they don't want to pay for a lot of things. you get in the catch 22 situation. >> how do we create? i'll go back to mr. reinhart? how do we create this -- the love and the cultural support and all of these sort of various soft fuzzy values that we need of customer demand is going to be created for these products? you know?

and in some ways, how do we undo what i think are some of the mistakes of the past with things like i'm now a home owner. i've now spent all of my time listening to other homeowners complain about toilets and showers and the washer and drier that doesn't work. they are all energy efficient. they don't work as well as the products they have faced. how do you undo that and get consumers excited about the big investments in green products and in green companies. which is harder to transmit? >> that's a big question. >> we're all about big questions. >> so the panelist from morgan stanley before lunch said that it was partly a generational thing; right? his children are smarter than he is. my children too, are smarter than mine are. i think we are going to make a transition. i think it'd be nice if we didn't have to wait for us all to die first; right?

so then the question. so then we are back to megan's question. it is a great question. it's hard to answer. i think the answer does have to do with transparency. and the information. so a couple of little examples from the private sector. if you go on patagonia's web site. it's the maker of outdoor wear. they have something that they call the footprint. they will tell you to the best they estimate, how much litters of water it took to get your fleece jacket manufactured and brought to your home in bethesda so do we -- does that affect our buying behavior? i don't think they know yet. it's roughly these things. the information once there is free; right? that's the great thing about information. and walmart, as i think you were mentioning is beginning to do similar things.

so maybe that is an agenda. either in the private sector or at the state level. i'm not sure about the federal level. maybe we can make some progress on that agenda in the next few years and get people more aware of the environmental consequences of their behavior. because i think that actually the difficulty in obtaining this sort of information is relatively profound. i think it's quite hard to know exactly what your carbon footprint is, despite the proliferation web site. >> i see that we have ten minutes left. i'm going to invite some q & a. i hope they'll be there. there's a gentleman back there. who's hand shot up instantly. [laughter] >> good afternoon. my name is bruce parker, i'm the president and ceo of the environmental industries association. the question that i was going to ask was that i think all of this green posturing have been

commoditized. i mean i'm looking around the room here. probably middle class, upper middle class, certainly the neighborhood i live is in. i don't listen to it anymore. i'm sick of hearing that such and such is equivalent to taking 5,000 train loads of coal off of the road. i think trucks go by we saved 3,000 trees. how come you haven't saved 3,400 trees. think there's a big -- really we become numb to all of the greening. in fact, the federal trade commission has promulgated regulations to do this. the second thing about -- that's just a comment. i think i speak for a lot of people. it's a generalization. but i'm using my friends as a fairly representative, not economic, but occupational background for doing that. the second thing is the big question that you ask about how do you instill behavioral

changes? well, it's interesting. a crisis is always the best thing to do that. if your doctor tells you you are going to die because you are smoking cigarettes and you have a 90% chance of living for another 50 year ifs you quit, most people will make a bona fide attempt to do it or will do it. we have been screaming now for five or six years, wondering about climate change and what it does. you cannot pick up a magazine. a newspaper. a blog that doesn't have something about climate change on it. attend has not changed consumer behavior. particularly for companies who manufacture nonconsumer goods. component products, airplanes, nobody really cares. if i were to -- i fly united because i get the points. if they tell me that their cutting down on their greenhouse gases, i could give a damn. and i'm an environmentalist. believe me. i do things around the house. i'm speaking for everybody. i think we have a lot of things

to do. nobody has figured it out yet. >> does anyone on the panel want to take that? [laughter] >> i'd like to say how many people here have had a conversation in the last 24 hours with colleagues about politics or making money in business? raise your hands. check it out. it's my view if you ask that question in europe and add a conversation in the last 24 hours about sustainability, you will have maybe not as many people, but very close to as many people raise their hand. i think -- i hear what you are saying. but i think we are still quite early on, at least in the u.s. and the society in mining simply our ability to be interested in and engaged in environmental sustainability as something that's just a core part of our society. and having fun talking about it. and making it again as it is, you know, in europe and, you

know, when you asked what do we see in the companies that really succeed? i tell you, it all boils down to one thing. when they are having a daily conversation about it, they are making money off of it. >> does anyone else want to? >> i think playing off of that a little bit, the other thing if you look at european countries where this is taking off, there is an stark economic element, a cost element like we are talking about. people didn't just start building wind mills or solar arrays. they did it because the cost of energy was so high it was really an national imparity. the scarcity of energy, you know, and they had to make some real choices. >> but they also had $5 a gallon energy taxes imposed in the '70s. >> the policy. but there's no question the policy drove it. we've tried that here. we can't raise gas taxes to fix

our bridges and roads. it is a real when does the situation, you know, absent any policy incentives become the kind of crisis that will spur behavior to change. you know, i'm skeptical about whether it will on a large scale unless you create huge policy incentives. i think transparency to some extent can help. we've proposed that to create job what's a company files a waiver, for a make it in america policy that they have to -- they should have to put that on a government web site so that manufacturers can access it. look and say i can make that. give it a chance. i do think transparency can spread change in behavior. but ultimately, i think there has to be some strong policy measures in place to reinforce that. >> do we have any other? you, up front. >> hi, i just -- i'm lisa goldberg, i with the aerospace industrial association. i'm glad you are having the firm

in general. with this panel, i think the thing that i find most interesting is that no one here as defined what you mean by the term green? and i'd like to hear your words on that. for people like me who have worked in environmental health and safety, programs, management, compliance for our whole careers, we really have a frustration with people who are perhaps new to the subject. so we welcome you to it. but we also want you to be aware of the things that we've learned along the line. the things that the last people just addressed. it really depends on the type of product that you got. you can't equate consumers with commodities like metal or our industry the product that is our industry has been manufacturing. because you don't have just the cost and how it's built or -- i'm willing to guess that the solar panel that is are made in china are not constructed in factories that are run to the

same health safety and environmental standards that our plans do in the u.s. and without the risk of going on, i want to add since you mentioned europe, i was in france last week. i can tell you that the european regulations are attempting to regulate the supply chain or -- i wouldn't say greening it. i think there's too many unintended consequence that is aren't recognized. that includes you may be driving manufacturers to over places where you don't have the same standards. for people like me, we look at the whole picture. we don't look at just one thing. if you are knocking down what chemicals are used, well, we'll say, you know, there's a reason that chemical is used. because there isn't been a replacement that can achieve the same safety and other performance requirements that a products needs. so without going on and on, which i certainly can, i'll turn it back to you. >> okay. i'm going to --up, for the panel. what does mean to make something

green? how do you think about the problem holistically, which is the basic question that i heard? >> so i think you are absolutely right. the idea that there's some sort of one-size-fits-all green strategy for firms has gotten us into a lot of trouble. people impose the tests. then they get disappointed. either way. either they think the company isn't green enough or they are wasting shareholder dollars because it's too green. you are right. strategy has to be firm specific. not just even industry specific, firm specific. i think that's your experience in the industries that you mentioned is what's driven you to that conclusion. for me, greenness is largely about efficiency. i think that, you know, we've talked about how resources are mispriced. and i think if we had a price system that doesn't have the --

then efficiency and greenness would be the same thing. i think the challenge is designing a path that takes us from our current subsidized system to this other world that we can imagine that doesn't -- that doesn't encounter so much resistance from the -- resistance from the current subsidy recipients that the founders. we've been at this a long time, pretending that resources are cheap. now because of prosperity and population growth, they are no longer cheap. they are becoming more and more scarce. and yet our furniture is optimized to dollar and a half gasoline. and the question is how we effect the transition from the world that we currently inhabit

to the world that we would like to imagine. i think we need absolutely to draw on the experience of people who have been at this for even longer than we have. although i think there's a fair amount of experience. >> all right. time for one more question. this gentleman here. >> my name is michael, i'm with the world resources institute. i would a comment/question. i just thought, and i think cathy mentioned it, climate change is real. it's happening. and it's going to have a tremendous impact on business. i'm just sort of surprised through the whole conversation, the word climate has barely come up. the real impact on businesses as far as damage from extreme weather, as far as having to adapt to move businesses, potentially to insurance issues. there's a whole range of cost associated with that. seems to me in the calculation, i'm not an economist. seems to me that should be factored in.

i'm wondering if our businessmen up there would explain that? it seems to me to be a lot more widespread. thank you. >> just a quick response. for some companies, companies that really want to just practice good business, not just good environmental business, but good business, look at and reevaluate what risks and how they can make money. one the biggest things for many companies, how they race risk and climate is very central to that. i don't know if captionation -- adaptation is not really --

first it is really associated with the chance that they are a company. let's say they are doug mae. they are companies -- one of their big competitors will come up with an alternative in the marketplace as dupont did back with cfcs that will become the preferred substitute in a big giant glass of products. that's very material to dow's bottom line. i think your point is great. we haven't talked about climate. we are taking other ways to talk about the issue. but i don't think that stuff companies from thinking about it. talking about it, and planning around it. >> yeah, we do full risk assessments. that's one the things. as is the political climate. i think from a cleaning and efficiency stand point, that plays into the climate area. look at industry as a whole. we talk about the gloom and

gloom behavior. there's a lot of simple things that's happening in business today are improving. it's a matter of eliminating waste and being efficient. buildings which consume 40%, you change out the lighting to high efficiency lighting, your talking about a 20 to 30% saving. you go to energy efficient motor, you talk about the 30% energy savings. you say that energy and how the energy is created, that gets back so indirectly. we discuss looking at the co2 commissions and everything that happened. i think from a company stand point, every company is looking at the climate area. at least i know certainly siemens is part of the risk assessment process. it is a challenge. and i think to the point earlier, i don't know if, you know, kind of this age group thinks about about it quite as much as the younger generation of what's the society going to be like for in 20 years. that's the call to action. you have to strategy if strategy

this into the peace -- piece part. we have to get the pieces taken apart from energy, renewables, behaviorals, and how do companies and regulatory agents in the government help us to go and make that happen? >> and very quickly. >> very, very quickly. so because climate came up so much this morning, i think we were trying to restrain ourselves a little bit from going over that thin ground. we were trying to broaden the agenda. i think there's a difference between companies making the preparation for the altering world and issues press releases about the kinds of planning exercises. i think there's a lot of first. i don't think there's much of the second. i think that's true in agriculture, which is astounding, we didn't spend much time talking about it. the consequences of a world of the sort of imagined by the ipcc for agriculture are quite

significant. and that will present enormous opportunities and difficulties for firms in that sector. >> can i say one quick thing? there are parts of the country as it is becoming -- i've spent time in the midwest, rising sea levels in the great lakes is a big concern in how they are going to ship goods. i think in different parts of the country, more of a tangible impact is going to rise that will catch the attention on a larger scale. >> with that, we have to close it off. thank you so much. and thank you to our panelist. [applause] [applause] [inaudible conversations] [inaudible conversations] >> governor pat quinn has narrow

he defeated his republican challenger. uncounted votes from absentee and other ballots say brady will not be able to over come governor quinn's lead. mr. brady said he will not concede until all of the votes are counted, including absentee ballots from military members oversears. -- overseas. they have until november 3 to certify the results. and within the statement requirements for an automatic recount. looking ahead to some of our live coverage next week.

>> changes need to occur. if the people get involved in the political system and begin to run for congress and come over here and make the changes that are necessary. >> whether it was john boehner on the c-span or coverage of him since, you can learn more about the presumptive speaker of the house in over 800 appearances online at the c-span video library. it's washington your way. >> now a discussion on innovations and technology and energy. this is part of the three day daily beast innovator summit. it's an hour. >> all right. i'm david patrick. i wrote for the "daily beast." you know, khosla is one the

better innovators. he famously was involved in one the greatest and maybe the single best d.c. hit that invested in 1997 was sold to cisco for $7 billion two years later. this guy is a pretty good venture capitalist. he's done a whole bunch of other interesting thing. then in 2004, he level kleiner-perkins. he's focusing now much more on energy and other stuffs. i wanted to start by asking, we'll get to that. i wanted to ask what did you think of the previous discussion? how did it relevant to rebooting america? >> you know, i take a very different attitude than the

previous panel. that was about econometric models and what you should do at macro level. i believe more forecasting models, those opinioned are based on, are flawed and fundamentally wrong. things happen from the bottom up. and more and more the economy is being driven from the bottom up. and you see unusual phenomena popping up, in every area. whether you are talking about technology, clean stacks, quality, energy, even education. little stuff happens that takes on life larger than it's own. and that is the way the model will work. mostly because the economy is a complex system and can't be models with econometric models. in fact, there's a fun fact. i like to talk about a professor at uc berkeley did a study.

and the book called "expert political judgment" about expert forecast. about the economic and politics. well, what he forecasted 20 years of tracking 50 experts, he found the average of forecast is the same of dogs telling monkeys. this is statistically valid data. that's sort of the attitude that i bring to the party. >> so the alternative then is innovation? it's got to come up with the bottom and come from the entrepreneurs. you take that as a given. >> you know, more significant changes that happen in society will happen from the bottom up. little phenomena that starts locally and multiply. once you do that math, the expotential multiplication.

in 1998 you couldn't ask anybody about the soviet economy breaking down. or the cold war. even 15 years ago, you couldn't reproduct the foundation of china. :

increase the chance of encountering a black swan. is that the way you think of that? >> yeah. so we take a very different approach, much larger from energy on education of poverty as possible then the word belief. you can never explain it if you operate in the probabilities. so i'm probably the only investor who says hey, only bring me stuff that has a 90% probability of failing. because i'm interested in the 10% probability of radical change, stuff that no self-respecting expert would predict because it's too flaky. almost all the large phenomenons. i look at it this way. 1985 i had the conversation with the ceo about -- he asked me

nobody needs a computer in every home. a pc in every home seems impossible. yeah, he's right. you only need a few hundred computers in every home. your refrigerator has two of them. in 1990, i got laughed at because i had my e-mail address on my business card. in 1995, a senior executive at at&t told me they'd never go to the internet protocol. they had this other model of power telecom. in the year 2000, you couldn't get anybody to believe mobile was important. and people forget. january 2007 was a whole different ball. six years ago, facebook came in. so rapid change happens all the time. it's always been predict the bowl. it's never any forecasts. and no expert would forecast

these things. and so is a very different model of how economies grow and change, especially if you edit the university. >> satiety.thought, you moved from telecom and coastal ventures come away to make that switch? >> back in 2000, as long as you're playing, good things happen. so in 2000, i had a choice. should i blame poverty or blame energy because i'm tired of the telecom problem. >> it was only poverty or energy that you even consider? >> those were two large problems i thought i could work on. and i do lots of lots of little experiments and probable experiment and if something popped out as a large phenomenon. i'll give you an example. i worked on this little called skf doing micro-finance loans in

2005. five years later, the company was a billion and a half as a public company in india. five years later, they're adding 400,000 families a month below the poverty line, make him less than $2 a day to their roster, 400,000 a month opening 60 new credit rancor is a month. this phenomena in the exponential result in things you can't imagine. i'll bet you that $2 million i gave them a tad more fact than the hundreds of billions of dollars of poverty programs. >> i want to get to this issue also. i want to talk about skf and the dichotomy between profit and nonprofit. let's stick with energy for a minute because you don't so much with energy. i mean, just give us your big

picture analysis of where we stand with energy innovation and what are big choices are. >> i'm probably the only man who thinks the energy problem is relatively, easily solvable compared to what people think. nac electricity consumption in the country dropping by 50%. absolutely. nac oil being cleaner than solar? absolutely. you just have to use your imagination. those are very contradictory statements. and all that come without doing involvements deliver different lifestyles. i'm not living a different lifestyle. in fact i'm under the view that 500 million people today have an energy rich lifestyle on this planet and 5 billion people will have an energy rich lifestyle. we can't find tons of times as

much oil. >> there's no choice. we have to find a way to make that because we have a problem for those 5 billion whose aspirations are irresistible. >> there was no physical way to root for 10 times more resources than exists on the planet. but -- and there's a great but, this is an innovative summit. so we had this light bulb takes 80% less electricity and have five times more like available for all these people? absolutely, we're doing that. we have air conditioning take five times -- 80% less electricity, absolutely we're working on that. in mississippi, not far from here, they're building a plan that takes blood -- biomass and nature turns it into crude oil over a million years and we turn it into crude oil. not avenel, it's crude oil. by the way, all these economies

whether it's 80% for lighting or 80% less electricity for air conditioning or producing crude oil. all have an interest that are 80% more efficient can be done without any of this stuff needing quality or legislation. those can be unsubsidized in the marketplace. no no policy helps. but technology makes dramatic changes have been. >> i mean, you have this black swan. and obviously that will only prove to be true if enough people are trying, right? and it clearly -- i can't believe he would even argue that enough people are trying, right? don't you think we have sort of an absence of an understanding of the scale of the opportunity and the need for some of these innovations and therefore not enough as you call it being shot on goal? >> yeah, so i'm a big believer to the policy thing we have to do is do the policies that

encourage more shots on goal is. since these are improbable event, my model of the world is very simple. we'll probably make 100 investments in various technologies that transform hopefully infrastructure of society. if given 100 such portfolios, you'd have 10,000 charts and goals. you only need 10 out of 10 houses to succeed, have a completely different world. junipers succeeded in telecom changed. one of our investments. google is an investment to be made with two or three people, completely change the world. we didn't get to invest, the 500 million people on it in five years? >> six and a half years. six and a half years. so we need to make these shots and goals. we could absolutely reinvent the infrastructure of society and how they tenex multiplication if we take more shots.

>> but are enough being taken? if so, where they been taken? here in china as we were before? >> unfortunately, the investment world wants safety first. and that's exactly the wrong thing to do. there can be 10 google is an energy space in the next 10 years. no question in my mind. if you want to participate in that, take longshots, not to save investment banks. operate on the fringe. how will that happen? today it's happening a little, but the fact is as soon as you have one or two great ideas, greed will take over. investors will stop worrying about the fear part. between fear and greed, investors -- i say investors have two emotions, fear and greed. they want to be safe. as soon as happened in the

internet, the netscape ipo -- triggered this huge investment. but a dark rest is not all bad. and that's the good things came out of it. remember, google came after the.com bust. hundreds of dollars of value creating. i think greed will take over at the right point and creates many more and hopefully will set the right example. >> so by that -- so you are fundamentally optimistic about her ability to make the transition from 500 million to 5 billion does not include fundamentally optimistic about the prospect of the united states? >> that's a different question. i'm fundamentally optimistic about energy and resources on this planet. we will easily feed a resource with energy, the 9 billion people who exist in this planet

by 2050. almost all the mechanisms experts and pundits talk about, that are extra blade and from the past will be wrong. i can almost certainly say -- i one of those people who say as we know i will not be run in 15 years. not a chance, right? i don't think what we are doing is not important. it will or will not happen in a big way depending upon what happens to elect or storage. so there's these complex systems and unusual things triggered and none of them will take over. >> so optimistic about the u.s., yes or no? >> if we keep encouraging innovation, i don't believe we as a country can succeed in a top sound quality driven, much earthquake. it stimulates this great deal,

being encourage innovation at the bottom. and we've done a pretty good job of that. the best minds in the world still come to this country. if we preserve that ecosystem, i'm fairly optimistic about the u.s. one of the great wings europe is doing for us is there becoming more big about immigration. that will encourage more people. europe is doing us a lot of favors. china by encouraging indigenous innovation is doing us a huge favor. if we come like japan which is a closed society, will lose our punch. japan was supposed to be all-powerful and 80's. didn't happen because they were so close. so this open across cultural thing and i saw this great, you know -- i wish we had time to argue about -- angela malco said recently, multiculturalism and

germany have failed. it's worth googling. it's an important -- very important argument. i think if you take the condit view i can be optimists. >> openness about people, new ideas is the metric air. you have this very strongly held view about technology and kind is the only salvation. just talk a little bit. why are you so convinced that it's only through technology that we can address our problems. and if you really don't think there's any other way, is that fair? >> what you know, i think technology is the only way to multiply resources. now, you need good policy to directed appropriately. but the biggest multipliers technology. you can't mandate efficiency reduction will solve the problem without technology. you can't mandate not taking a shower in the morning and using

all that water. so i think technology is necessary in the single lever. when a good quality. many good systems, distribution, others tanks. that may give you an example because there's, you know, i'm not smart enough to call the last final, but this was a little abstract for me. that may give you an example. there was a panel coming up in education. let me set that up. we keep talking about improving our schools and michelle, i want you to meet her. that may be true. but might i postulate that may be the right way to renovate schools is to eliminate schools. let me tell you a story. there was one guy who used to work in education -- >> you like extreme ideas? >> i like extreme ideas, but let me give you the data. this guy said the school is

boring. you work at a hedge fund, young guy in his late twenties or early 30's with a vaulted this equation. two minutes, youtube video. you just put it on youtube. people started using it. now he had something like two or 3000 videos on youtube. two minutes they showed an mtv model of education. guess what? he is getting 300,000 students a month coming to his website, learning of youtube and throwing away their textbooks in their classrooms. and by the way, growing 20% a month. you do the math. he'll be at all high school students before long. and so i'm working with him -- you know, it's stunning. look up comic company. its reach in a large percentage

of high school students today, keeping their math, physics, chemistry. and he has youtube videos only for all that. so maybe that's the way kids will learn and will see new innovation, just make my model of innovation more concrete, i could give you a hundred examples if you have time. >> one less thing, you mention skf micro finance haven't been this huge business success and something that does remediate poverty. do you also do some nonprofit work with microsoft institutions. how do you parse your work in nonprofit versus for-profit? unfortunately, that's going to have to be our last question. somebody with your kind of love, a lot of a lot of people distributing money away, that you must invest. >> yeah, i have to admit, i have a cowardly attitude. what i like his stuff but intellectually stimulates me. so as i said to david when we

were talking earlier, you know, i could have afforded by $100 million yacht. a series of experiments that are intellectually stimulating on my yeah. instead of finding out i just said to myself i'm going to play around these little experiments, how familiar they are, a millionaire and see what takes. more shots on goal, but it's fun for me. it's a better lifestyle. i enjoyed more than i would enjoy a job. so that's my view of life. it's very fun and if nothing else will will at least have fun in life. >> thank you so much, vinod. >> thank you very much, everybody. [applause] ♪ ♪ ♪

♪ ♪ ♪ ♪ ♪ >> well, good morning everybody and welcome to the second panel discussion of the day entitled, getting it done. my name is gillian tett, editor of the financial times. and joining me this morning is a financial group of speakers. or my left, you're right, john kao, chairman of the moscow integration which speaks for

itself. next for him is david neeleman, chairman and ceo of azul airlines, a brazilian startup airline company, formerly founder of jetblue. next to him, michael polsky, ceo of a green company -- green technology company. and at the end, elizabeth galante, global green's resource center and office, which again peaks for itself. now, in this morning's panel, the first panel, we heard the view from 30,000 feet. and frankly, it was a pretty depressing view because depending on whether you agree with -- irrespective of whether you agree with professor ferguson or professor stiglitz about what the government can or should be doing right now in terms of stimulating the economy, as much as i would do to a long-term fiscal health of america, the picture is not at all encouraging. but i guess the key question we

need to ask right now is that even if policy makers, politicians, academics think that the outlook is so grim, what's actually happening down at ground level? no mind about the gloom of 30,000 feet, with two real-life people who have to try and navigate the system today actually run companies try and make money actually think about things? what role can policy play into what degree can innovation actually help in recruiting america? so i'm going to start with john kao who has been looking at the question of innovation for a number of years and ask you, heidi read the current situation? are you as gloomy as the first panel is where? >> it's the best of times in the worst of times to paraphrase a well-known author. i mean, in fact i have these great colleagues appear on stage would suggest that there is a great deal going right with innovation. and there's a lot to applaud and we'll get into some of these stories in more depth. but i also think were in a very tricky.

in history and is worth setting a little bit of context where the political philosopher antonio bronstein 17 the period between old order and the new order, a number of morbid symptoms were likely to appear. that's our transition point. that's our obstacle. that's the significance of the notion of rebooting. rebooting is about make a transition, were you not only have to turn something on, but you have to turn something off first. you have to make choices. you have to basically chart a course. if i were to put the u.s. on the couch for just a minute, take a couple of the most important obstacles to innovation and getting it done, actually have to do with the realm of mentality or what neil referred to are referenced as animal spirit. it's almost as if we are in a state of denial. we are in a state of -- and not since trying to grapple with the notion of what is the national story around why we should be in

innovation nation and where we are going in terms of the future that we want for ourselves. so this whole notion of we have no choice, which the mayor spoke of last night, in some respects has to do with an external crisis, all right. so new orleans had katrina. there are many examples in recent innovation history of crises that galvanize nations to greater efforts. cleveland in 1991 -- finland's foreign trade decreased by 25% overnight because of the demise of the soviet union. soviet union. moscow auto, that young kennedyesque minister said we have three things to succeed on, education, science and technology and innovation. those were the kind of hail mary play for finland, which obviously had paid off extremely well. but it took an external crisis to breakthrough business as usual. so in this country, we have a

problem with denial. it's not knowing how deeply we have a problem. more importantly, building a broad consensus around that would shape in a sense the plane of engagement for all of the innovation that we are hoping for at a mass scale. i have no doubt that there are many people like the node who you cannot must argue at the apex of the innovation pyramid. but we're talking about trying to create or regenerate and innovation society, where it matters whether tens of thousands -- hundreds of thousands, millions of people engaged in the innovation effort. to do that i think we need a new narrative. we need a sense that america is not about don't miss the ball, but headed out of the part. and so this mentality issue is extremely important. it also affects our view of the global maps. so when my own work, i see that innovation has become a topic of attention on the part of dozens of countries around the world. where really the middle of the new geography of innovation.

so what is the mentality of americans in terms of embracing this globalization of innovation? we have some good examples of some the panel who have seasoned entrepreneurs and innovators could succeed anywhere. and even shifted their geography and their business model to be able to accommodate this new geography. the hottest that in turn plan to the notion of a new mentality? a new way of encountering innovation, not necessarily is just an exclusively american province, but as a province in an arena in which america can serve as a systems integrator and be far more engaged in a culturally intelligent as well as emotionally intelligent kind of way. >> okay, we'll thank you. i guess writing a new narrative is what today's event is all about, not just for the policy elite, but everyone was watching "the daily beast" channel and other forms of outlets. but david, you are a real-life entrepreneur hasn't worked in finland, but you are straddling brazil and america and have an

interesting perspective as a result. what do you think the real challenge for you right now with? >> it's interesting because starting jetblue and being totally involved in the u.s. economy and finding brazil three days a week and being involved in the brazilian economy. >> remind us when did you start jetblue as a mantra for newer? >> i started in 1999 and we started in the year 2000. so we just had our 10 year anniversary of jetblue. >> the last decade has been in innovation for you. >> for me -- i'm down in brazil and icy -- we talk about education being a problem here. go to brazil in a show you some education problems. so i people and in facilitating their first home, their first car, kind of the beginning of the cycle. and i come in and trying to figure out how to get rid of my third car, my third house. it seems like it's the end of the cycle. i think were talking about

innovation here. and what frustrates me is their solutions that seem so obvious and so simple that can easily be implemented, but then there's just these -- you know, we can talk about education. geoffrey canada, who has heard geoffrey canada talking about the heart and children zone. his jesus is the cost $50,000 a year to incarcerate somebody and i can educate them for $20,000 a year and make sure i can cut the incarceration rate is five or six times. who would argue with that kind of thinking. if you want to be a business person you can argue it, but then there's -- then he also argues that you're not confident in the teacher come you can't teach. but then there's the centers of those who need to protect incompetent teachers. there's a rubber room in new york where there's $100 million year spent with people who are incompetent and they can't fire. energy -- there's so many things we can do. so jeb lu, innovations first guy

to put tvs on airplanes. that's a simple solution. i got to watch the college football game last night and i watched him give the 19. why doesn't everybody have that? i don't know. at jetblue, you call 1800 jetblue today, everyone is in their homes. 1% of our people work in their homes. working at home, reservations. tough job, important job for a company. great on the economy and great on the environment. people don't have to drive to work. people are 30% more productive. i started doing that with my first company 17 years ago. what percentage of people that call center or work-at-home? i don't know, maybe 1% of that. i had add -- i had add, so i kept forgetting my tickets when i go to the airport. so i said why do we need tickets? reinvented ticketless travel and southwest now gets credit and jeb lu. so i mean, there are some very

simple things we can do with energy. i have a solution for traffic in new york they think and solve it just like that. >> which is? [inaudible] i think you ever ready, open audience here. >> who likes going across town? a lot of you guys don't try subways, but i got my master card in my pocket. it's good to go north and south. if you have to go across town, all the crosstown streets are blocked and it's hard to get across india to take a taxi. there was a guy, jeremy lehner anker chi, brazil but couldn't afford a subway system. so what jamie leonard did was created a subway system above ground where he had these buses and put people in this elevated platforms. stupidity in the platform. the bus would come come attenders would open and the bus would go. it was a simulated subway above ground. so he came to new york and said why don't you ever 10 streets in new york, see no more than a

five-minute walk, 10, 20, 30, 40, 50, 6070, when buses going across town and was to congestion pricing in the city to make sure that people pay extra for congestion. take that money and have the buses before bury that go across town. $100 million in revenue you can find it. it is completely false. you're no more than five minutes away. you don't need to get a platform. you get on this bus go across town. the productivity for that would pay for it in like three days. i don't know i would do something like that. you talk about it and people look at you like -- i don't know. i don't understand it. the simple complex issue, simple solutions, but we just seem to get mired down in kind of old thinking. >> one of the reasons i love talking to watch brewers is because we spent time on trains too much time in d.c. you want to tour yourself off the nearest tall building because much of the policy discussion is so depressing and so on project is. and the fact is people with

ideas of energy the question is u.s. goods by this and more effective implemented? i'm going to come back later on. i'm going to come back later and ask you whether you think that things like the long-term fiscal health of the nation are actually affect senior investment plans. i'll ask you that in a minute. but before commission, what do you see as the key issue? during the process of trying to use information technology in a more entrepreneurial way and help companies do that. what do you see as key obstacles to growth and innovation right now? >> you know, it's interesting. the tubers used our information technology. hp is the largest technology company in the world, well-known for technology. and our information has been focused on this technology part. i think what were seen as more and more innovation is focused on the information so i tried to

make the point information will be the most viable resource we have in the next decades of being able to get that information in the right people's hands at the right people's times will enable them to grow their businesses, to improve their economies, improve education. so this is all about changing the paradigm from technology being about perfect dignity and about commuting primarily to technology being about communications, collaboration and innovation on not only the tip ologies side, but the business model side. there's as much innovation happening in business models today as there is an technology and there's never been more innovation in tech ologies than there is today. so it's an interesting time when you've got multiple dimensions of innovation and you combine the two and give the demographics we see around the world, we have to be, you know in the beginning of a growth phase. >> i guess david as an example of all the employees working from home is actually part of

that. right, now you are, michael in what might be called one of the sexiest parts of the business world right now in terms of working in green tech knowledge he. you have flavor of the month in terms of the policy side of things and many parts of the administration would like to pin their hopes on green technology providing the engine for growth, providing jobs in the future. do you see it that way? i mean, has government been supportive in terms of innovation in america? >> actually the reason i'm saying is because i feel it's a good thing and that's good for business. eyman entered entrepreneur i was an engineer and then i saw opportunity when u.s. first regulated electricity consumption. by the way, you need certain market consumption were it exists i don't think we'll see

jetblue will still be regulated. you will not see a lot of things on energy. you feel what we call a regulated. when they allow private ownership i got into business and having other business in the same area and i saw opportunity in the green space. i thought, you know, with green energy, we can solve a lot of problems so there's one in westman creating jobs and national security, less dependent on oil, so on, clean air. and i thought it just made a lot of sense and i got into this business. but then i quickly realized that she could have the best idea. by the way, energy is very different in high-tech. in high-tech, you can put in a market consumer sees providing energy is about movement. because we do of ways to produce energy in different ways. we can make it for coal. it can make it from oil, we have nuclear or other ways. so really marketplace consumers as i say, they do not

distinguish. nobody knows if electricity is used for coal or from clean energy, from wind, solar, so on. therefore really an energy field, we need some direction. as a society which we want to go because really, you know, price does not select to basically the cost of particular types of energy. therefore i heard mr. khosla saying let's use the marketplace to decide good i think we need some type elegy. what i found an energy when i got them in space, we can produce when cheaper than utilities, for example, produce from other sources. because mark. is controlled by activities you can solve coming that a lower price. so this is not a particular free market. so my point is there was a lot of discussion about green. as a matter of fact this year, united states wind industry

shrank in half. >> when has industry shrunk in half? >> the amount of wind generation this year is half of 2009 in probably half of 2008. why? because there's very little market. we rely -- already the reason we have renewable now is because we have so-called state have renewable obligations, requirement for solar, wind. everybody talks solar. greatest thing. solar is more expensive than coal everybody knows and probably will be for the foreseeable future. that's why we need policy. we need certain regulation requirement. it's not skew the market. it's because the cost of coal does not really represent to cost of coal for electricity, okay? so i do believe -- and i'm a free-market person and a graduate of the university of chicago, but i found people like to talk about free markets when they controlled the market and

it's not free. [laughter] there is no free market or it's very skewed market. some airline business. if you have cheaper fare coming of customers. and energy you can have cheaper electricity but we don't have means to deliver to consumers. if you go to intermediary who has his own power plants to sell. so why would he buy yours? so i think we have to be really realistic. and one more thing with energy innovation, a lot of money poured into energy innovation by people in silicon valley. and i think the problem is they are they really don't understand the keys to access to market. we can put a lot of money, stimulus money into energy innovation, but unless we have market, markets to implement those innovations, things are not going to succeed in the long term. >> so the government can put money into the program --

>> it's one portion in the market. because entrepreneurs are in the free markets and our economy. i think we need to stimulate a little bit, but the key is the market. somebody invented how to make electricity cheaper or feel cheaper, they have to make sure they can sell it. >> if you look back over history in america over the last century or so, most successful cases of industrial investment have been when the government itself is the source of demand about things rather than simply trying to reap the market in other ways. i'd like to come back to you in a minute and ask you whether you think there's other countries sort of doing it better. we've heard a lot of discussion about asia this morning in china. i'd be curious to know from you. >> you know, look around the world. by the way, we have this moment, you know, i know a lot of people denying everything of you mentioned, sort of the best things for those, but the whole world is now moving in that sort

of direction. and obviously even china, asian country, europe. i think in my opinion, the united states is behind. we were not behind and we still have great entrepreneurial minds and i think something will change. but i think were behind. for example, europe has better policies and they give a head start. now china -- look at china for example. were now trying to basically have fair practices, but china is not only stimulate manufacturers, but they create their own markets. this year we have more renewable energy installed in china than the united states. so it's not the ages manufacturer to it themselves or they use their own market. so i think -- i think we have to -- we have to do a better job to opening up the market to

innovation. >> do you want to hop in there or should we go to bask? >> that's okay. i was sitting here at 18, energy is a big issue for everybody. i'm agnostic on greenhouse gases because i don't know enough to know. i'm just running airlines. >> it's called denial, right? >> i put a lot of particulars into the atmosphere. but i hear of guys coming to conferences in their private jets complaining about greenhouse gases. at least i'm taking a bunch of people at one time instead of one person in a jet. well, what's the biggest -- what are the biggest creators of greenhouse gases are coal-fired plants, right? are putting a lot of co2 in the atmosphere. all the same people that complain about greenhouse gases are also complaining -- are not doing anything with nuclear. do you realize what little teeny pellet this big you can hardly see -- it's actually recycled

nuclear byproduct is equal to 200 carloads of coal? 200 carloads of coal. you could put that little piece in this room and from the world for maybe 1000 or 2000 years. all you have to do is figure out where to put this room. as a more important to put 5 billion trainloads of coal into the atmosphere was more important to figure out where to put this room in some place where nobody would ever touch it or see it and maybe after 10,000 years would be neutralized a mountain somewhere. but it's not in your state, there's no real ever let it happen. nothing could ever be done. instead will put this in the atmosphere inch screw up the environment because we can't figure out what to put something that's this site for the next thousand years. to me it not going to blow up. it's not going to do anything. it's just distance. to me is the stupidest thing in the world. i can't figure out why people complain about greenhouse gases and can't figure out how to nuclearized. by that nuclear would be embraced by all those -- the co

twos. if you're concerned about greenhouse gases, why not nuclear? the technology is completely different. stuff like that destroys me insane. i can't figure it out -- we should be doing that. it's pretty simple to me. >> mike, if you'd like to respond go-ahead but otherwise it's a good moment to bring bask in. michael and then beth. michael? who would like to take on nuclear energy? >> i'm not disagreeing that it's clean and does not produce greenhouse gases, but there are better ways to do the nuclear. nuclear is extremely expensive. obviously we're not arguing here by regulation, but nuclear is highly regulated because of issues. for example i know people may think that i represent renewable energy, the renewable energy cost half of the nuclear. why would you -- obviously large utilities love nuclear because they put in the is in charge consumers, but there are better ways to do it. i'm not against nuclear.

but if you really want to choose the best one, then what look at what is the best one and choose the best one. but you know -- >> okay, beth. >> wind energy is half as much as nuclear? i don't believe that, but -- >> someone has to deal with why -- >> or nuclear. >> we could have an interesting backstage arguments about this later on. >> we have a large nuclear facility here that ended up costing so many more times than it originally did. >> your new orleans? >> as part of our energy for the region. >> yours was the widest townie on these issues when you're trying to act as a bridge in the corporate sector? >> i commend obviously from a completely different perspective because i'm working with a nonprofit and working on social entrepreneur development in the city of new orleans.

and i think just to add to the dialogue and we've all been sitting here listening to the gloom in the dim and the fear and you get out of fear problems by greed. and i think new orleans is a testament to the fact that it doesn't have to be that way. and we don't have to just continue to embrace this old model of its either fear or greed. new orleans is an example of what love can do. now i know you're a media like she's a tree hugger, this is a nonprofit lady. i don't mean love in the squishy are not getting anything done kind of way. i'm using live as the power of that. fear is powerful, gratis powerful, but the only reason new orleans is here today is because of love, okay? let's be honest. fear was a big motivator at the beginning and we all been on adrenaline for the first couple of years think he new orleans was not going to be your because millions of people and certainly a lot of politicians from other

parts of the country that new orleans should just be written off. as the winner told basically the junior.com is a very powerful motivator. so is motivating an individual level because people lost loved ones. families were destroyed. homes were destroyed, businesses destroyed. you want to talk about a cataclysmic event from your looking at new orleans. and we have a choice. the choice was to give up. but fear and despair ruled the day or try something different. and that is really love. we love this place, were not willing to let it go and we use that energy to drive the conversation, not just to put our individual lives back together, but she drive business and government to the more sustainable and resilient plays. so new orleans -- and you've heard a lot about this from the

mayor last night and wendell very eloquently talking about his driving force, this innovation, this renaissance that is occurring here. i personally work and green building here. it is unbelievable the embrace of the green building industry and technologies and increasingly renewable energy. and on the horizon, coastal restoration innovation is kind of the silver lining for the bp's bill. the mentality in this city is something that you can learn from, but you can learn from and your business is and we think government should and can learn from. were trying to spark this sense that this third motivator of love can review forward. i think folks from google in for a conference. the most common search term in the world on the planet is love. so when were looking at

innovative ways to reboot and restart this conversation and jumpstart this move away from the freezing fear that is really gripped this country in so many parts of the world. in new orleans we have come to terms with that five years ago. although obviously it was unnatural disaster, engineering failure, we in some ways are moving on and we can serve as a model for the country to focus on and try this dialogue and this action forward. >> don't be afraid. you know, jump off the cliff. >> in a sense, to force people off denial, tied him with what john was saying earlier. i work from japan and there's a wonderful proverb that says if you put a frog into a pan of cold water and heated up slowly, it will boil to death. but if you drop into boiling

water quickly it would jump out and shot. i guess one of the questions is is america right now -- american business in the situation of being and not pan of water and slowly eaten up in suffering as a result. john, when you hear a story like beth talking about the brilliance of new orleans, does that look at you as an example of not succumbing to denial that other businesses could follow? >> is a very inspiring story. i think the reason we're here is to draw from the lessons of new orleans. i think the whole area of social innovation which is an ill-defined discipline quote unquote, is in fact the leading edge of innovation on a worldwide basis. so this idea that innovation isn't just about making new stuff you can sell at a march earnings-per-share to experience economic growth, to get executive bonuses, but rather is about the common good. it's something i think we have

to offer on the global stage. it's probably not enough for us to look at ourselves in the mirror and say okay word innovation nation with our destiny in our hands because of all the reasons that we said. americans love a good come from behind story. the problem is we don't have that story yet. and we don't want to have a national equivalent of a katrina style disaster to force us to a place where we have no choice because we're smarter than not and we should be able to figure it out. >> i'd like to ask the three businessmen in the group, having heard earlier on in this discussion about the fiscal problems, there is a theory going around that the reason why this is not investing right now, aren't getting out of doing stuff is because of the lack of the spirits because many are worrying about the regulatory climate. they're worried about the long-term fiscal future of america. do you think that's the real

reason why activity isn't happening or do you think that is simply the policymakers in washington missing the picture? >> activity is happening. if you bring us back to innovation, one of the problems is people talk about innovation and they think it's a complex issue -- [inaudible] this is too complex an issue to expect to find a singular solution. you know, if you look at some of the things were doing as we innovate, we're doing rings that are socially important, but were also doing things because they're good for business. we have a massive data center in the u.k. and wintered. and it's very innovative from an energy efficiency point of view. we placed it there because we want to be a legit take advantage of the north sea whence cometh you you can open up all the sides of the data center and the wind flows through. we set up a system so we can capture all the rainfall from the roof and we use that tukwila servers and water the grounds.

in so these are things we do because they're good for business. it helps us run our business more efficiently. we get a lot of press in the i.t. industry because we have these massive data centers. if we solve that problem completely, we've only address two of the carbon footprint. information technology deployed in different aleutians like smart meters or sensors in the environment where were feeding that information back and making better decisions about more efficient use of energy is the other 98% of the problem. so you've got to attack multiple dimensions. in most of these solutions are solutions that are not only good socially, but good for business. and that's what you have to have to drive it. >> it seems to me that investment, i agree, is continuing. the issue may be that the geographical distribution of the investment shifting. so hp -- we were talking before the panel about 80% of innocent

hp -- 75% of hp's activities are outside the u.s. i talked to craig ferrets, owner of intel. and he said are deeply not. and so this whole notion of talent, capital and ideas being able to flow seamlessly across borders creates new challenges for us as a country in terms of our enterprises and their increasing array of choices globally as well as entrepreneurs. you know i said a couple years ago we were likely to start seems visible evidence of brain drain out of the u.s. we have countries like singapore setting up $500 million digital media exploration fund open to anybody in the world, when you see the quality of life outside the u.s.a. needs the incentives and improved operating conditions for innovation, that's likely to happen. it's not a bad thing, but it's a challenge. >> david, you set up your second big company i believe. it is your second comment is not? >> for us. >> forth. sorry. in brazil, not in america. why is that?

would you create another company in america in today's conditions? >> well, i think that -- like i said earlier that brazil is at the beginning of the cycle. it's like the united states was maybe 30 years ago in so many different areas. if we look at what we've accomplished and all the lessons we've learned, the pros and cons and then you're able to go back and start again, kind of do things differently. that's kind of exciting. we have markets -- 75% of the city's reserve didn't have any airline service at all. and were flying between cantinas commotions the airport in apollo and rio and we have 11 flights a day flying 1200 people. a year ago there were no flights on that market. we have a guy that goes to work every morning and goes back every night. usefulness of thousand times already. so you're seeing little domestic help better fund idea going back

and visiting their families because of that of a 36 hour bus ride they can go every month when their family that worked for them can buy a ticket to fly home. so that's the opportunity there is greater. one thing i want to say is, i mean, america is so great and every time we go to brazil and i hear us all complaining about america and i go there and think man cometh brazil had this much of what america has been so were trying to do that. but what's interesting to me is how you get things done. and in brazil had a military junta down there and they developed methanol business from sugarcane, not from corn, which is a vastly different bank. and they did it because they didn't have to go through congress. and now brazil is energy -- totally independent using ethanol. and you go to a tab in south paul brazil and there's a natural gas tank kind of using a

part of the trunk. the car could run ethanol, gasoline or natural gas. all the cabs are in brazil. and it's something in that area because they didn't have oil before petrobras came along. as someone who mandated it. and now, 90% of the cars made in brazil are 100% ethanol, 100 is a gas or you can put natural gas and now -- so i know, i think we have a challenge in our country. and just last week, if you do things that are meaningful and can change exactly, you know, if we decide to be like france increased 75% of our power from nuclear power and figure out how to get everybody card in america as an electric car so you can plug it in when power goes down into innovation to make sure that happens, we'll figure out how to make every diesel truck in this country i natural gas to create distributions to be able to do it to make the owners of those trucks in india for not doing it. and spend money in those areas

where it will absolutely things over time. or if you put the money to education and make sure the education of actually doing what those to be doing. i hear money is the education, but if you blow what you don't have a way to hold teachers accountable, to hold students accountable and make sure that it actually is something like the children's own. we can get all those innovations tings pushed to that point and use the money to really change the way we live our lives and create a lot of jobs in the process. >> and with love. >> with love, lots of love. >> love is a good game. michael, in some ways you represent a version of the american dream because you came originally from the ukraine and you have chosen to create companies here in america. i mean, from your perspective, do still think america is a good place to build a company? >> obviously i do feel were

great place in many assorted measures. however, i mean, we have our own issues right now. for example, first of all, people spoke from panels before as far as access to credit. i think we as a country after the crisis, especially with the country a big business -- small business cannot access the money. i'm sure big businesses are flush with money and they can go to the bank and borrow. small businesses have a lot harder time. and it's very difficult. we spend a lot more time 3 we spend a lot more time kind of looking where to borrow the money and how to borrow the money. and instead of doing the business in a way. so that's more difficult. >> back to the bankers. >> i still feel and i want to come back that, you know, unfortunately -- i don't know, i came here in 1976 and i feel

that now is probably one of the most difficult times, where it's hard to predict where sort of policy of this country, we were going. and i still feel in a way they are for connected. you don't innovate in a lab thinking i'm going to come up with some product and then i'll put this in the marketplace. people need to see the way that's going on in a society. like i said, brazil got into ethanol, not before some guys, you know, because there was a market created your brazil said, we don't have school left. get into ethanol. and that's why people got been in business. if we said that we want 20, 30, whatever% of the energy, just like france and nuclear, it was a policy. if government policies that we want to have 80% of nuclear. that's when it got done.

>> we need a military junta here i guess. or a dictatorship. >> it's not abate -- certain things are driven by the commitment of the nation. we didn't build highway systems because somebody said it's a great idea, because its own containership. let's build a highway. we decided that long-term is an infrastructure investment, whether it's energy, highway, bridges, whatever. so we're talking about we have to commit to improving our infrastructure, which is obviously a good thing. and i think in a way those lacombe. people, if you've market opportunity to make money, realize the american dream, like i said, i got into business not by accident. because the united states changed the regulations. they create electrical markets. i'm sure you've got an airline because airlines were regulated. we cannot forget this.

i did not become an entrepreneur because i came here that i want to be an entrepreneur. let's have something to do because they saw the opportunity in a specific area. >> that seems actually fantastic moment to end on. you saw the opportunity, chase it and you've now created a company and yet there is still policy challenges and infrastructure which remained very, very real. so i see that time is up. i'm sure i'll caspian for coffee. i'd like to say a very big thank you for all of you for the panel. thank you. [applause] >> now, a discussion on guantánamo bay detainees with judge a. raymond randolph. he is the d.c. court of appeals judge a ported by george w. bush in 1990. in july, judge randolph upheld the government's detention of a yemeni man at guantánamo bay. this ruling overturned the district court's decision that the men be freed due to no

reliable evidence that he was a member of al qaeda. former attorney general edwin muse moderates this hour-long discussion. .. of course are always welcome to e-mail less, simply at speaker at.

following our speech today, of course, we will have a reception for everyone in the allyson full year. the speaker will make his remarks and conclude them. we will adjourn for that reception. the speaker will not be taken the lead critiquing questions. hosting this afternoon is ed meese who serves as the ronald reagan distinguished fellow in public policy as well as the chairman of the center for legal and judicial studies here at the heritage foundation. prior to that of course he was associated with ronald reagan and served as the 75th attorney general of the united states. please welcome ed meese. [applause] for shrek >> thank you, john, and ladies and gentlemen. it's a pleasure for me to join john and welcoming you on behalf of the heritage foundation and particularly the center for legal and judicial studies. this is our fear and you will joseph story distinguished

lecture joseph st, as most of you know, was a very important figure in the early days of our country in terms of the judicial activities of the nation. he practiced law in salem, massachusetts. he was a member of the massachusetts house of representatives and briefly represented that area in congress. in november of 1811, at the age of 32, joseph story became the youngest associate justice of the supreme court of the united states. wiley, a member of the court, he also was a professor of law we at harvard, where it is said that the students were a very pleased at having a teacher and being, having the benefit of learning from a sitting supreme court justice. but today all of us lawyers sit and listen to the knowledge to bestowed upon us by the supreme court. probably we are as surprised as the students may have been at

that time. in perhaps the most famous work that joseph story completed and which particularly brings us down to this day where his commentaries on the constitution of the united states, which were first published in 1983, and which are still very instructive for those seeking to have an understanding of the proper way to interpret the constitution. in essence, what he said was the constitution means what it says. it's the first comprehensive treatise on the constitution that was ever made. and as a matter of fact, the new editions continue to come out with various people and one cannot within the last two decades that was published with again bringing to public attention of the good work of the justice story. store reset in one of his decisions, one of the most famous ones, against the hunters

he said the constitution was not intended to provide nearly for the exigencies of a few years but was to endure through a long period of ages. the event of which were locked up in the in scrutable purposes of providence. it is this understanding of the breadth and scope of the constitution and its enduring value of the future ages that made us choose joseph story as the title for this lecture series. the speaker selected for this year is the honorable raymond randolph, senior circuit judge to the united states court of appeals for the district of columbia circuit. ray received his bachelor's degree from drexel university where he was president of the debate society as well as a member of the varsity wrestling squad, thus showing that he was proficient in both verbal and physical combat.

[laughter] he served as a law clerk to judge henry friendly of the court of appeals for the second circuit. he was a deputy solicitor general of the united states after having worked in the solicitors general sophistry period. it was a special counsel to the committee on standards -- standards of official conduct. the ethics committee in effect of the united states house of representatives. in that period of time after clerking and having clerked, this meant he served in all three branches of the federal government, the judicial, the congressional as well as the executive. he has been an outstanding appellate lawyer and private practice as well as a serving certain states as a special assistant attorney general. during the period of 1971 to 1990, she argued some 23 times in the united states supreme court winning 20 of the cases, which is an excellent batting

average almost phenomenal. he has also been an educator. he has been an adjunct professor of law at georgetown university and george mason school full, and he is there at members instances of the community service as he serves on the board of many civic and educational organizations. judge randolph is married to the honorable eileen o'connor, who is with us today, formerly assistant attorney general in the tax division in the the part of justice. it is a real pleasure for me to introduce a friend, an outstanding lawyer, an outstanding judge, and a person who we feel best represents the ideals and the intellectual integrity of justice story. please join me in welcoming ray randolph. [applause] >> while i'm very honored to be here tonight, and i want to congratulate general ed meese on his 25th anniversary.

it's been 25 years since he began a series of speeches on what was then considered a controversial topic advocating that the supreme court and the other courts interpret the constitution according to what the founders meant that to mean, and that has kicked off a debate that still goes on as a matter of fact in the last opinion of the last term of the last day after 35 years of being in the court, john paul stevens engaged in that debate which he began when 25 years ago attorney general meese gave his aba article but to lean. i'm happy to be here tonight. i have from the title of my talk from a well-known passage in the great gatsby, and i will condense it for you. there were careless people.

they smashed up things and creatures and let other people clean up the mess they had made. two years ago in a case called boon maudine verses bush, a five justice majority of the supreme court declared habeas corpus and jurisdiction extended beyond the shore of the united states. this, they said, was a matter of american constitutional law. the booming been a ruling was unprecedented, not just in this country, but in modern times what for what the ancient history of habeas corpus jurisprudence. boumedine ripped up centuries of law and left in its wake the title of my talk tonight, "a legal mess." in a recent comprehensive study for the brookings institute it was written that, quote, it is hard to overstate the importance of a lower court case that are falling in the wake of

boumedine, and indeed it is. since boumedine, the cases, those decisions have attracted very little attention, but the guantanamo case marches on. hundreds of them in our court and in the court of -- in the district court in washington, d.c.. laws being made and precedents are being set, judicial standards were being declared. soldiers, capturing combatants in the field may have to comply with judicially set evidenciary requirements. questioning of prisoners may have to adhere to some sort of judicial norm to the exclusionary rules may be enforced. evidence may have to be handled and preserved in a certain way approved by the court. the short of it is in the peace and quiet of the federal courthouse not very far from here, federal judges are making law, and the law is one that potentially affects the actions

of our soldiers in the battlefield of the world now in the future and all of this is being done in the name of the constitution. as with ascent chesney saidy cbs corpus cases are, quote commented vehicles for an unprecedented war time, lawmaking exercise with broad implications for the future. the law is published in the cases will in all likelihood governor not only the guantanamo retentions but any other around the world which american courts acquire habeas jurisdiction. what is more, they continue, to the extent these cases as devilish substance tiff and procedural rules governing the application of law the could impact the tensions far beyond those immediately supervised by the federal court to it tonight and to focus on the majority opinion and where it moves us to this point. i'm going to be blunt the supreme court opinions i've

often thought and the decision schaenman agreement. now for some history. under the english common law, alien enemies captured abroad had no right to habeas corpus, period. in the made 1700's blackstone wrote, quote, alien enemies have no rights, no privileges, unless by the keen special favor during the time of war. until boumediene, american law reflected these ancient longstanding precepts. and i will focus on one case to give you an example. it was a case that was decided in the twilight of world war ii and it should have settle the controversy that arose 50 years later in the guantanamo cases. during world war to the allies captured no less than 2 million

prisoners and held it. the germans, the german prisoners were the most pretentious. before the war ended, 200 of them filed petitions for writs of habeas corpus directly in the supreme court of the united states. the supreme court denied each petition but only eight justices voted. justice robert jackson didn't participate because while he was on the supreme court took a leave of absence and served as the chief counsel of the nazi war crimes trials and marone burke. not everybody agreed by the way that the trials were such a good idea. learned hand for example condemn the the nordenberg trials and while jackson was in germany, chief justice stone in a letter the was recently discovered route to a friend, quote, jackson is a way conducting his party in nordenberg. i don't mind what he does to the nazis but i hate to see the

pretense running the court and proceeding according to the common law. it is a little to sanctimonious of forgot to meet my old-fashioned ideas. when jackson returned to the supreme court, a case arose that did not require him to recuse himself. after germany's surrender on may 8th, 1945, but before the surrender of japan, 21 german nationals in china assisted japanese fighting forces against the united states. the united states army captured the germans and tried and convicted them before a military commission came. the army then transferred the prisoners to a prison in germany, the landsberg prison. now landsberg was already famous. it was famous because in 1924 an individual named adolf hitler was in prison if per year for

treason, and it was in his 13 months and hitler's 13 on the stotland word that he wrote my struggle. a treatise by the way that winston churchill called " revenue koran of face and war." the united states army took over the landsberg fortress in 1945 and they ran it for 13 years. we haven't been running guantanamo that long yet. not until 1958 did the army released the last of the germans in prison. at one point there were 1600 of them and we executed 300 of those 1600. after the german prisons came arrive the landsberg they filed a writ of habeas corpus petitions, but instead of indirectly in the supreme court, the file and in the united states district court for district of columbia. they claimed violations of the fifth amendment. and the cases consolidated for

the decision led to the supreme court opinion in johnson versus eis and trevor, decided in 1950. the issue johnson versus driver is the issue that a rose half a century later in the guantanamo habeas case is ultimately winding up in boumediene versus bush. the issue was did the writ of habeas corpus reach alien enemies, captured abroad during the war and held be on the sovereign territory of the united states? and justice jackson wrote the opinion. he held the privilege of litigation, his words, in federal court had not been extended for the german prisons. at no time, he said, it had the prisoners been within the territory over which the united states is sovereign and the seams of their offense, think about this in terms of

guantanamo, the scene of their offense, the capture and trial, the punishment for all beyond the territorial jurisdiction of any court of the united states. moreover, these trials, jackson continued, and he but no, would hamper the war effort and bring aid and the conflict to the enemy. witnesses including military officials might have to travel to the united states from overseas. all of this what in danger a, quote, conflict between the judicial and military opinion and would diminish the prestige of any field commander as he was called to account in his own civil court and would divert his efforts and attention from the military offensive abroad. jackson also held for the court that the constitution did not confer with the constitution did not confer rights upon german prisoners. he put it this way. if the fifth amendment confers its rights and all the world it would mean during military occupation irreconcilable

enemies elements, guerrilla fighters and werewolf's would require the american judiciary to assure them freedom of speech, press and assembly as in our first amendment. right to bear arms is in the second amendment. in a reasonable search and seizure as in the fourth as well as rights to jury trials in the fifth and sixth amendment. by the way, when i was working on the first guantanamo case, which i will talk about, i wondered about the word werewolf. i heard some of you kind of wonder, too come and voice and -- i literally spent a day trying to figure out what it meant, and finally i was very fortunate because president clinton had released an unclassified old group of documents. the werewolf's were a group of nazis that were trained to conduct terrorist activities during the occupation if and when the allied forces prevailed in germany. they were the werewolf's.

jackson knew about this. of course he knew about them since he was the charnel council that are numbered. well, this might as you might imagine becoming a leading opinion in over the years the supreme court came case after case has relied on it, as has our court, for the proposition various constitutional rights of his sixth amendment are not held by aliens who are outside of the sovereign territory in the united states. and that is where the matters stood as far as law is concerned on the morning of september september 11th, to the isn't one. in the aftermath of the tax neither president bush for his legal at pfizer's could have to anticipate would have come next as a result of the using guantanamo which did it purposely in light of eisentrager told prisoners elsewhere. the first wave of guantanamo cases reached the court in december of 2002.

late in december. the issue was a statutory one at that time, not constitutional. did the federal habeas corpus statute gives the district court's jurisdiction to review the detention of the guantanamo prisoners? the habeas statute was basically the same then in 2002 as it was when justice jackson issued his opinion eisentrager. and so the matter seemed pretty clear to us. i've always believed that the first principal of jurisprudence is to treat like cases alike. if you don't do that i don't think he will have a rule of law. so we compare the cases. the army controlled landsberg prison, the navy controlled guantanamo. neither area was part of the sovereign territory of the united states. sovereignty by the way is a purely political question and congress had declared in the immigration act and later that guantanamo is not part of the

sovereign territory of the united states. we hold it pursuant to a lease, and our landlord -- and we get a check every year to of landlord cuba refuses to cash it, which is their problem. [laughter] they might need it now. anyway, guantanamo also has the guantanamo prisoners have a good deal in common with the prisoners being held in landsberg. they, too, were aliens, they were captured during the military operations. they were in a foreign country when they were captured, they were now abroad, and they were in the custody of the american military and they had never set foot in the united states, and so relying on eisentrager, we held at guantanamo detainees were not entitled to habeas corpus relief in the courts of the united states. i wrote the opinion and the supreme court reversed.

the court's opinion by justice stevens used a rationale neither party had even offered before us or even in the supreme court of the united states in oral argument or in the brief. i'm not going to go into it. that's all the topic of my talk tonight but if you're interested you can read the dissent in the case. i ought to pause here and say i liked justice stevens, argued before him and i've always liked him and matter of fact i think he's made the only good joke about regionalism i've ever heard, and i just as an aside i will tell you what it was. an attorney is arguing before the supreme court, i wasn't there but this is been verified and the attorneys in the south for the answering questions no judge this and no judge of that and yes, george of this and finally one of the justices couldn't stand it any longer and is it council, it's not a judge,

it's justice, and justice stevens said council, don't be too concerned about that, the framers of the constitution made the same mistake. [laughter] the judges of the supreme court. the chief justice's -- anyway. on any event, the congress of the united states felt that justice stevens opinion was profoundly mistaken. i like to say they thought i was right and the supreme court was wrong, but i would put it the other way. but for whatever reason, congress overruled the supreme court. remember this is a statutory question, and in the detainee act of 2005, congress st did, quote camano court judge or justice worrying i guess about the stevens, shall have jurisdiction to hear habeas cases from guantanamo. in place of habeas corpus, congress set up a system where there would be a public review

directly in the course, court of appeals about the decisions of what was called the combat status review tribunals to determine whether the individuals being held of guantanamo or in fact part of al qaeda or part of the taliban. and then a second wave of guantanamo cases arrived in the court. and again, i wrote the opinion. we held that the detainee at stated that we didn't have jurisdiction and neither did the district court. it sounded to us as clear as can be. and again, the supreme court reversed. this time on the ground that the detainee act applied only to cases that were not then pending but all the hundreds of cases that were pending weren't really covered by what congress had enacted. this struck me as profoundly

mistaken, and once again congress agreed and overruled the supreme court for the second time. the military commissions act of 2007 made crystal clear the jurisdiction of the jurisdictional bar against tb is corpus applied to all future and pending cases, quote, without exception to the donelson fatah was like to converse slamming a fist down on the desk and say in this time we really mean it, supreme court. and that case, or that statute, the military commissions act is with this set the stage for boumediene, the third case in the guantanamo trilogy. again, i wrote to the opinion for the court. the issue in boumediene is whether the military commission act together with the detainee at which abolished jurisdiction in the federal courts of the pbs petitions violated the

constitution. the suspension clause of the constitution and i will give that to you. it reads the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it. the calls is a riddle. it limits instances where the congress can suspend the writ yet it doesn't seem to guarantee that it will ever exist. the supreme court has done a very good job in my view of solving the riddle but tonight i want to focus on different problem. the problem deals with the court majority of ostensible use of regionalism in the first part of the opinion and then disregard of the most emotive analysis in the second half of the opinion. with respect to the first part of the opinion, all nine justices, all of them in the majority and the dissent agreed

on one proposition, and that is that the suspension calls of the constitution at least preserved the common law writ of habeas corpus has existed in 79. and 1789 you know has significance because that is from which we treat the constitution. the historical question in the first part of the opinion was a geographical one. how far did the writ of habeas corpus reach and 79? if it didn't extend beyond the sovereign territory of the nation, congress had been suspended when it barred petitions from guantanamo. guantanamo is not part of the country's sovereign territory. but with our regionalism as no one knows better than general meese, there is always a catch, and the catch is this. to interpret the constitution in light of history which is what our regionalism announced to you

have to interpret history. and how you perform the task of this story will determine how well and is valid your interpretation of the constitution will be. it should be obvious that not very much is made of it. i remember working at home on the case and the geographical scope it struck me at the time as seeming to contemplate the right confined to our sovereign territory. but it struck me that i ought to look at the lectures on the english law delivered by robert chambers at oxford between 1767 and 1773. pretty contemporaneous. it just so happens i had those lectures at home in my library. you may wonder why. [laughter] i will confess i am somewhat of a johnsonian coming and i knew as all johnsonian snow chambers

to over from blackstone and in the summer of 1767 he was seized by writer's block, so he got ahold of his friend, samuel johnson and a bit johnson to please come to oxford to help him prepare the lectures, but johnson was a lawyer by the way. so johnson obliged and chambers very graciously acknowledged johnson's assistance in his published volumes. johnson by the way also helped out, i shouldn't get started on johnson, but for the lawyers in the audience and most of you are, johnson also insisted boswell, who was a scotch, and boswell one time asked johnson for his help and are giving a case before the scottish supreme court. johnson produced what i think is the best defense of the decisis

that have ever been written in the english language. you can find it in boswell. anyway, so i told the chamber is volume out of the electors off the shelf and cracked open the volume and lo and behold there was a lecture directly on the point. chambers instructed to students oxford that the writ of habeas corpus did not extend beyond the kings dominion's. among other authorities if relied on the opinion of the lord chief justice mansfield and only habeas corpus act of 1679. lord mansfield by all accounts was the greatest lawyer in 18th-century england and he had delivered a lengthy opinion in 1759 stating that the writ of habeas corpus did not extend beyond the england sovereign territory. like chambers, she explained the tedious corpus act was as black stone described as the bulwark of english liberty provided

exactly that and so for at least a generation leading up to the adoption of our constitution, english lawyers, educated at oxford were instructive that the writ of habeas corpus did not reach beyond the kings dominion's. so i thought it legitimate to rely on in chambers and my opinion in boumediene did even though the electors by the way were not published in the united states until 1986 and even though i had no idea whether the framers of the constitution had even known of them, but in any debt i also relied on lord mansfield and other material for our court at the constitutional right, which is all the sustention calls saved, preserved, did not extend to guantanamo bay. justice jackson wrote to in eisentrager in 1950 we are slated to no instance where a court in this country or any

other country where the british tv is corpus is known has ever issued on behalf of kinealy in any who at no time and no relevant time and no stage of his captivity has been a within its territorial jurisdiction. up until the time of the supreme court decision in boumediene, justice jackson's statement of law was clearly incontrovertible when boumediene reached the supreme court, there were dozens of amicus briefs filed by the leading rights of academia. all of them in favor of the guantanamo detainees, yet not a single one was able to come up with a single case for a contemporary commentary indicating habeas corpus reached beyond the nation's sovereign territory. the historical evidence was just overwhelming and it was all the other way.

i gave a few speeches at all schools about the boumediene case while that was pending in the higher court. my friend, tim o'brien, is here tonight and invited me to give one. i am a frequent speaker in the wintertime in the warmer climate -- [laughter] and this was in fort lauderdale. but anyway, so i told the students i said there's no getting around this history, it's impossible. i was wrong. one of the classic books on historical research and analysis is david hackett fischer's historians fallacies, toward the logic of historical fault published in 1950 or 70. professor fisher lists 112 fallacies in historical scholarship common fallacies. the majority opinion in boumediene by my count committed 46. and i'm going to give you an

illustration, only a brief one. the court's opinion states, quote, lord mansfield can be cited for the proposition that time of the founding 1789 english courts lack the power to issue the writ of scotland or other regions beyond england sovereign territory which lord mansfield referred to as foreign. we will note a couple of things about that passage. note the way she what she phrases lord mansfield can be cited. how about lord mansfield established a proposition? mansfield after all wasn't your typical man on the street, he was the lord chief justice of england. in the way the supreme court majority in the emadine purports to blunt this powerful history by noting the, quote, possibility that the english courts were motivated by provincial concerns rather than form a legal construct. and the court has scotland wasn't really a foreign country, england when lord mansfield wrote his opinion.

now these lines are critical to the entirety of the courts historical analysis in the first part of boumediene. yet these lines alone contained by my count no less than four different policies, his doherty and policies, and to make matters worse, the court round of the short discussion with a whopper, a gross historical fact. i will deal with the fallacies first. the most obvious thing is probably the fallacy of the metaphysical question. framing the issue in terms of the real motivations, of the judges of the court of the kings' bench in the mid 18th century england, the boumediene majority set up an impossible and query. what were the motives of the judge's 250 years ago, how do i know? i don't even know what the motivations are of the supreme court.

[laughter] although i have my suspicions. [laughter] the court's next best step was subscribing to the fallacy of the false economy to a domestic that professor fisher wrote so serious that it deserves to be singled out for special condemnation. the court's statement assumes only two possibilities. the english courts were motivated by the legal construct, whatever that means, or they were motivated by of provincial concerns, whatever that means. but there's another explanation that is the conclusive 1i think as lord mansfield recognized english courts limited the jurisdiction to the sovereign territory of england because they were doing so in compliance with the tedious corpus act of 1679. that doesn't strike me as a legal construct and it doesn't strike me as a provincial concern. another fallacy in the quoted passages is the fallacy of the negative proved.

as the professor fisher explains, this occurs whenever that he strongly in declares there is no evidence that x is the case and then it receives to a firm not x is the case. the boumediene majority suggests there's no evidence lord mansfield of the other judges of the court kings bench work applying the requirements of the law, hence the must of been doing something else. this is a clear attempt to quote professor fisher. to sustain a factual proposition bite negative evidence, not knowing that a thing exists, professor fisher tells us is different than knowing it does not exist. one is reminded of alves, not in wonderland, and the king through the looking glass. i see nobody on the road, said alice. i only wish i had such a rise, the king remarked in a fretful tone to read to be able to see nobody in that such a distance.

[laughter] the court's fourth mistake in this short passage increased the fallacy of the possible proof. this particular blunder affects a good deal of the boumediene opinion. the empirical proof professor fisher tells us requires not merely the establishment of the possibility but an estimate of probability. the court mentions the boumediene mentions the possibility lord mansfield was mistaken about the scope of habeas but it doesn't bother to assess the probability. in fact, there is no evidence to support the court's possibility and overwhelming historical evidence is that pbs didn't reach beyond england sovereign territory. this brings me to the courts massive gross fact. ford mansfield 1700 opinions date did the great was geographic and find and did not

extend to scotland because scotland was a foreign territory. in order to disprove this, the supreme court boon boumediene opinion charge card mansfield with having made a mistake of the law. scotland, the majority said, was, quote, not foreign. the professor and a brilliant and thoroughly researched article because i agree with him come in the columbia law journal, the review explains why it was the supreme court not lord mansfield. i have to add an additional factor. of all of the legal authorities and all of 18th-century england court chief justice mansfield would have known better than anyone else the status of scotland. why? he wasn't merely the greatest lawyer of his time, but obviously unknown to the majority in boumediene, lord mansfield was a scot.

[laughter] at the end of the historical inquiry in boumediene, the majority said the consumption of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when lord mansfield issued the writ outside of england. kutcha the language, not altogether satisfactory explanation for the general understanding to issac satisfactory to home? satisfactory to the lawyers of the students educated and the lord chief justice of england. so what are we to make of this pinker remarks? this sounds like a little analysis but literary criticism. but we know the history was to read and the final point in the court section of the court opinion is even stranger. the courses it can't reach a conclusion of the geographical scope of the writ of habeas

corpus because the historical record is, quote, not complete. and by that, the court meant not all he these corpus proceedings in 18th-century england were reported. if one took this rationale seriously, the heat to say a regionalism is a dead letter because the historical record is never complete. this clear the supreme court declares the original meeting of the suspension clause as ambiguous. and if the court were right, and it clearly is not come even that should not have led to the conclusion that there reached. if the court had been faced with an ambiguous statute interpreted by an administrative agency, the court would have recognized the meetings was a policy choice and deferred we do it all the time to get to the agency. so why did the court refused to defers to the congress tries? and that was a choice clearly resting on the considerations of the foreign policy and the

security of the united states. the supreme court justices have any expertise in foreign policy or the security of the united states? the question is answered cells. well no matter the court majority plunged ahead, and used what it termed a functional analysis and distorted eisentrager beyond recognition. the case was directly on point. it was decided as a constitutional case, and the boumediene court said that eisentrager must distinguishable. on the grounds that justice scalia turned false. nevertheless, the court had decided that the writ of habeas corpus as it existed in 1789 would have reached guantanamo bay and could be invoked by alien enemies captured abroad. that ended part one of the opinion. but now another huge question

loomed. if the courts of the district of columbia circuit, district and the court of appeals, had jurisdiction, but did the jurisdiction entail? what rights did the detainee's have? that was a question the courts had to decide. we did in the side, we didn't have to reach it because we said the written didn't extend to guantanamo because the writ of habeas corpus can't be suspended if the congress put as an alternative something that gave rights more than the detainees were entitled to. as of the question came down to whether that alternative review in the court of the tribunal, combat said that this -- status was a substitute for habeas corpus and this again was an awful question, one that the supreme court never considered in trying to answer the question what would you have expected the supreme court to do? i think the proverbial man from mars watching the defense would

say they do with in the second part of the opinion what they did in the first. they try to find what was the scope of the rate in terms of its content of habeas corpus in 1789 when the founders wrote that provision in the constitution. but the supreme court did no such thing. it's faced a rather difficult historical problem. there was no history of dealing with habeas corpus being extended to aliens beyond the sovereign shores of england. they had no history to rely on. and there was no opinion, there was no history because in my view the supreme court was flat wrong in the first part of its opinion. the closest case, the closest cases in this country were cases in which there was reviewed by tedious and criminal judgments rendered during world war ii to read to for instance exporting, many of you are probably familiar with the case.

a bomb german saboteurs captured in this country during world war ii. they were tried down the street at the the part of justice by a military commission. the supreme court heard their argument and announced judgment without opinion and the next day they were executed. the problem for using that case as an example for the supreme court boumediene majority is that the supreme court in clearance said the only issue was in the fact whether they were building, was and whether they were german saboteurs, the only issue was whether the military commissions sitting in that a part of justice had jurisdiction and if you translate that into guantanamo, the only question would be if the combat status review of jurisdiction. the answer to that is clearly yes. so instead of dealing with the history of habeas corpus as a dix's didn't 79, we are treated in boumediene to a general

discussion of the law of traditional habeas corpus. never mind that none of the cases and none of the authorities the court sites in the second part of the opinion had anything to do with wartime or in any captured on the battlefield or with aliens held abroad. instead of seeking to discover the content of the common law of it as it existed in '79, the court now starts talking about the developments of statutory habeas corpus from the mid-1800s through the 20th century. this, i think is in disguise the philosophy of the living constitution to be even after serving fees' authorities, the court pulls back its stated is going to leave that to the district court and our core to to the site the content of constitutional habeas corpus using our discretion to refine reminded of what john wrote in

his critique of roe v wade by the way no opponent of abortion. they rotate infil law journal. to paraphrase them the second part of boumediene, quote, is that because it is about a constitutional law. but rather because it is not constitutional law and gives almost no sense of an obligation to try to be. as the court and boumediene hold the scope of habeas is not determined by the content of the rate has existed in 79 what does determine the scope of previous? the court gave no answer and this is precisely what has led to the guantanamo mess. the open-ended nature of the second part of boumediene is what led chesney to describe the court's action as a massive grant of legislative power to

our court and the district court and odd that an accurate way of describing of the judicial function that has been left to us as a result of boumediene. the court did say that pbs corpus should be meaningful. the statement comes out of the blue in the opinion. it has no context. meaningful as compared to what? habeas corpus and 1789? habeas corpus under the modern statutes? pbs for the key legal aliens facing deportation for the convicted criminals, criminal defendants who are awaiting trial? all of those seven different standards and the court doesn't tell which. at the moment, there are more than 200 guantanamo cases pending in the court and in the district court. in consolidated proceedings the court is scheduled to hear 45 cases. these figures only give an

abstract account of what is at stake here. but let me give you a glimpse of a true case in a factual setting. it is an opinion i am going to quote from that i issued this summer in a case that raised several unsettled issues. a petition was just filed the other day in the case. so i am not going to go into the merits. but here is the opening paragraph of my opinion, and i think will give you a flavor of what we are dealing with here. and i am quoting, in the summer of 2001, a 39-year-old yemeni security guard took a six month leave of absence from his job to move from afghanistan leaving his wife and two children he stated the kandahar home of his brother-in-law, a close associate of osama bin laden. twice he met personally with bin laden. from kandahar she moved to a

guest house used as a staging area for al qaeda recruits. he then attended the al qaeda trading camp where many of the september 11th hijackers had trained. he traveled between kabul, coast and kandahar while american forces were of launching attacks in afghanistan. among other explanations for his movements, claimed he decided to take a vacation. after sustaining injuries requiring his hospitalization, he crossed the pakistani border on a bus carrying the wounded and dead and pakistani fighters. this man, mohammed, who is now a detainee at the guantanamo naval base at mix all of this, but insists he was not part of al qaeda and he never fought against the united states. others identified him as

redacted has classified information to bid on his petition calling still quoting from the opening paragraph, on his petition for the writ of habeas corpus, the district court ordered him released. we reversed. this case and more than 200 others prevent fundamental issues about the scope of habeas corpus. it's up to my colleagues and i and the district judges to fill in the blanks. consider one of the most basic of all issues who bears the burden of proof? does the government have to show that it is properly called into detainee? or is it up to the detainee to show that he is being improperly held? boumediene contains language that seems to support both positions. on the one hand the court said habeas entitles the prisoner to a meaningful opportunity to demonstrate he is being held pursuant to the tyranny of

supplication interpretation of the relevant law. this sounds like the ball is in the detainee court but a few pages later, we find the court stating, quote, the extent required of the government in these cases is a matter to be determined. it seems to contemplate the government has to make some sort of a showing to assume that to be the case we have assumed this the government has to make some kind of showing. the question remains what kind of showing? what is the nature of the government's burden of proof? you can read and read boumediene and you will not find an answer. so how does the court go about solving this question of answering it? here are the options. the burden of proof could be beyond a reasonable doubt as in the criminal cases. it could be clear and convincing evidence perhaps as standard as a preponderance of evidence or maybe it is probable cause which is all the police need to hold

somebody suspect a crime. or maybe the proof required of the government is merely some evidence for decades that was the standard of deportation. again, how does the court choose among these options? what are the legal principles that govern? some of the judges of the district courts have followed the case management order that puts the burden on the government to show by the preponderance of the evidence the detainee is part of al qaeda or the taliban. yet if you consult the call and all the writ of habeas corpus has existed in 79, you will find no case, none ever in which the crown had to prove by the preponderance of the evidence that was justifiably colin the prisoner. in this country even in statutory, even in the statutory habeas case the government only had to produce some evidence, according from the supreme court opinions in the case is

challenging selective service decisions and cases challenging deportation. the solicitor general pointed of and actually quoted from the supreme court opinions and traditional proceedings in this country well into the 20th century the courts did not, never reviewed factual determinations made by the executive in determining individuals. in detaining individuals. and there was certainly true in the military context. in habeas cases seeking review of court-martial's for simple, but a friend only to show the soldier received full and fair consideration of the claims and into the evidence. other issues just as fundamental as the burden of proof are working their way through our courts for instance if the detainee is entitled to discovery. if so, what sort of discovering cracks may he depose field commanders? cia agents and other governmental officials?

make he or his attorney examine intelligence reports and other government documents? is there a brady rule applies to the case is? that is does the government to provide the detainee with exculpatory evidence? what sort of evidence jerry search and production does the government to make in response to the discovery requests? if these are allowed. the records of the field be reviewed, cia records and sas, the pentagon records? to give you an idea of the enormity of what is involved, we had a guantanamo case pending while the court was considering boumediene, and a panel of the court decided to order the government to produce all documents bearing of the detainee was properly held. we've received affidavits from the head of the cia, the fbi, nsa, the the part of defense, and other agencies.

some of the affidavits were classified but i can tell you the public portion indicated for one detainee and for every detainee, hundreds of thousands of documents would have to be produced, many of them top-secret, and the deposited where? the constitution of the courthouse? this is far from wrong. if there is an evidentiary hearing in the proceedings, what sort of evidence can the government use and satisfying its burden if house one? ken eight introduce here say? may it relied on classified intelligence reports? muskett share the reports with the detainee or the council? what of confidential informants? should the government be required to expose the informant's identity, produce the individual for questioning? give the detainee all the statements the informative snead to the military and the cia?

part of the al qaeda training manual have been introduced in several of the habeas corpus cases. the manual instructs those who are captured to lobby to their captors to make up stories to recount and always, always to claim the it been tortured. so how should the district court treat claims of torture? whose burden is it? what constitutes torture? must all statements from the detainee during torture be excluded? what about statements in the weeks and months and years after such events? one might suppose at least some of these questions, procedural and other wise rf and sheeran. it could be decided by referring to the body of law that has grown up around the fifth amendment or the sixth amendment or other constitutional provisions.

what we call justice jackson's reasoning in eisentrager, which i quoted earlier, she denied the constitutional protections extended beyond the united states to aliens who had -- never had a presence in this country and the law of the circuit is the same, these constitutional provisions do not extend to aliens who have no property or presence in the united states. the guantanamo cases raise many of three enormously important issues and i'm going to mention to more. late last spring a panel of the court overruled a district court decision extending the grid of habeas corpus to the prisoners being held at the bottom there force base in afghanistan. the united states by the way was occupying bob -- bagram and the

court had to choose between eisentrager on the one hand and boumediene on the other. was the military police and the occupation of bagram more likely army control of landsberg prison in bavaria for the navy's lease of guantanamo bay from cuba? as i said, our court came down on the side of eisentrager. it held that pbs didn't extend to afghanistan, no provision has yet been filed to the case is pending on another motion in the district court. the second issue i want to mention, but few weeks ago. another panel of the court heard the case of obama. the detainee in the case that mr. having sworn the oath of allegiance to osama bin laden -- allegiance to osama bin laden, a biot as the college. one of the questions is who bears the burden of proving that the detainee quit al qaeda which

he says he did. when there is no dispute that the detainee had been part of the organization at one time what i have described is unfortunately just a glimpse of the guantanamo mess and i barely scratched the surface. we're all of this will lead and what affect will have on the future military conflicts is anyone's guess. justice scalia in his boumediene who dissent predicts that the majority opinion in that case will make the war on terror, i use his words, harder on us. it will almost certainly cause more americans to be killed. i hope he's wrong but i don't know. i am certain of one thing. it's easy to distort history. professor fisher close on hundred 12 ways to do it and there are many more and i am certain of one other thing.

i'm certain george orwell was right when he said who controls the past controls the future. who controls the present controls the past. thank you. [applause] [applause] ..