>> up next on c-span2, the supreme court case, bond vs. the united states which involves a woman involved in antiterrorism statutes. after that, a look at the anniversary of the dayton peace aaccords. >> the preach court heard oral argument last week whether an

individual can challenge laws using the 10th amendment. she was charged and appealing a third circut court of appeals rules that she cannot challenge the federal government charging her with a chemical weapons law intended to prosecute terrorists. the case is bond vs. the united states. >> number 091227, bond vs. united states. >> mr. chief justice, and may it please the court. the standing of the petitioner to challenge the constitutionality of the federal statute under which her liberty is deprived should not be opened to serious question. she clearly satisfies this court's test for sending. it is hard to understand an injury more concrete than six years in federal prison. it is her own and not some third

party's. i think standing is a bit of a misno , ma'amer here -- misnomer. she's a defendant in court held by a federal prosecutor. there's no logical reason she cannot mount a constitutional attack on the statute that is the basis for the prosecution. >> any of our opinions talk about the standing of the descendent? i can't think of one at the moment. >> i think it's in the habeas context, but when you have a criminal deft or someone serving a sentence, they are standing to challenge the conviction is one of the easiest standing cases you can imagine. i think in a sense, the same principles apply here. the standing is normally something you think about applying to the plaintiffs who invoke the jurisdiction of the court. what's at issue here is really something more of a bar on somebody's ability to make an argument that would vermont their liberty. i see no reason why in logic

that should be the case. the court of appeals essentially didn't apply -- >> there are certainly some arguments you can make as a defendant for which you have no standing. are you saying there's no argument for a defendant on which you have no standing? >> i'm not sure it's normal standing principles, your honor. there's some that have no business with your case, and there's arguments you can make that have nothing to do -- >> won't it raids anti-- raise antiestablishment clause objection in a manner that does not involve legislation in which our opinions say therefore does not violate the establishment clause. >> i have to know why you were a defendant in that case and why it had to do with the price of key in that particular case. >> no, you wouldn't. all you have to know is that the claim is based upon -- is not based upon a statute and that

our establishment clause jurisprudence says not based upon a statute, it doesn't violate the establishment clause. >> with respect, i don't think that follows. if the federal executive tried to em prison you based on religion, you can take issue with that. the problem in your recent case, the -- >> i'm saying the exercise clause of the violation, and you don't these the exercise clause for that. >> if we're therefore imprisoning you, you can bring that claim. in all events bringing us back to the case before you, i think there's no reason to think that ordinary principles of standing wouldn't give my client every ability to challenge the constitutionality of the statute. >> in the case before us, are you making any claims other than that congress was acting outside the enumerated powers in enacting this statute? is there any 10th amendment

claims you're making? in other words you admit congress is acting within its powers, and yet the action violates the 10th amendment. are you making claims of that sort, or are all your claims that the statute here goes beyond congress' ability to enact it under article i. >> well, justice kagan, it's a principally argued powers. i'm not sure understand some 10th amendment claims that are only unique. >> let's just use the case and say that even though congress might have the ability to enact the statute, there's limitations. do you have a claim like that in this case in >> i don't think so. take the prince case. the prince case went out of its way to say an enumerated case.

this is not separate from enumerated powers. >> let's assume mr. clem clemson ents that it is. do you have any claims like that? >> i don't think so, justice kagan, but i don't want to make the case that the government thinks is not enough of a government empowered claim. >> government agrees it's an enumerated power claim in this case. >> again, justice jins berg, that's the basis of the claim. >> you are at no risk if the fault were limited to what both of you are involved in article i section viii and if there's a difference in claims. when the case arises, we can

deal with it. >> well, justice ginsburg, you did deal with that and as long as there's no articles against my client, i guess that's fair enough for my client. the arguments we preserved, for example, is the preserve is it's not a blank check for the government, but requires the balancing of interests. if we talk both the state's interest in criminal prosecution and law enforcement, i would hate for a trap door to open up at that point, and i'm told, wait, wait, wait, that's too much of the state's interest and not your own interest. >> you want us to say when there's a specific injury spect to your client that your client has the right to make any argument to show that the government has exceeded its powers under the constitution because they are limited to protect the liberties of the individual? >> exactly right, justice

kennedy. that's the fundamental worry i have here is that the courts have not drawn a distinction between the claims. the two cases the government points to, new york and prince, both go out of the way to say they are enumerated power claims because a law that common is not necessary and proper. part of the problem with the suggestion that somehow tennessee electorates are reestablished is that it miscomprehends who the provisions are there for. they are there to protect the liberty of citizens. the court made that clear in the free enterprise fund last term. it was not the executive complaining. the executive branch ably defended this court. it was a disgruntled accounting firm. >> can't there be some 10th

amendment claims going to just state prerogatives and not the rights of individuals? let's say there's a statute that purports to regulate where a state locates its capital or the contents of the state flag or something like that, isn't that just state prerogative and not individual rights 1234 >> i think it would. my point is that there's not some special rule. my point is that we should just apply the normal rules, and what i don't think 1 sustainable is the proposition in claims that an individual never has standing. imagine a statute that support the federal money by commoneer commoneerring argument of defense. it's not any difference if they use the general to bring criminal prosecutions. >> you're not making a plan, so

are you making a common dearing plan? >> i'm not self-eyeing to have done so. [laughter] we're not asking you to do anything special, but it's the government asking you to go out of your way to realize this as a different case and preserve it. >> the problem is if you're just making a treaty power claim, then how are you going to possibly win on reman in the third circuit if we reverse and say your client has standings? do you think it falls within the prerogatives of the court of appeals to say that ozari vs. holland was wrong? >> first, this is a technical matter. we could go back to the third circut on the way here and i think it's a mistake to think that it is some bright lined rule that forever answers this

question. as i read that case and we qleerly argued before the third kir cut, it's not a blank check but a balancing test that looks at the state's interest and the federal's interest in aseesing whether or not the statute that implements the treaty is necessary aproper, and i think this case compares favorably with that case. the state interest because the birds were flying through on their way and there's no state interest or so the case held. this case, the state has a real interest in the law enforcement. i also think we ought to -- >> that depend on the nature of the chemical involved. suppose it was a chemical that people normally understand the kind of chemical used in a chemical weapon. let's say it's serrin. does it matter this case doesn't involve something like that in >> i think it does. it matters in part for a constitutional avoidance of construction argument which i think also ought to be open to us.

i think analogy to the jones case where the federal statute of arson doesn't apply when a cousin throws a cocktail at a residence. >> that's merit questions. >> i'm just trying to respond to the question. >> i thought we were just doing standing. >> we're not asking you to do more than standing, but i think it's important to understand that we don't think we would be sort of limited to just losing on the case and coming back up. we have a good argument about against hole land and think there's statutory construction argument. there's something odd about the government's theory of buying a chemical weapon on amazon.com. that's odd. it's the kind of construction argument to say, well, maybe cairn or chemical weapons is one thing, but with respect to the commonly available chemical

without to say any jurisdictional element -- we ought to have standing to make. >> one thing that the strongest point against you, i think, is the single sentence in the case. it's only one sentence, but it's in the opinion. i think what it's saying justice roberts says, well, he already just finished saying nobody -- congress hasn't violated some rule against creating a system of regulation in the statute because it isn't regulation, but then he said even if it were, even if it were, and if your complaint was that congress x acted outside its authority which they might have thought at that time in creating a system, tba, that competes with local systems even if that were so, the appellant's absent the state or their officers would have no standing in this suit to raise the question. okay.

now, that takes quite a lot on, but that's what it says. are we to say that's an ill considered? or it was wrong? are we supposed to say the law changed? what in your view are we supposed to say? >> well, two things about that sentence, and then explain what i think you should say. first of all, the first thing i say about that sentence is that i don't think read with the the context of the entire opinion means the court is trying to impose a special disability on 10th amendment claims. remember, they already rejected the plaintiff's basis for having standing. >> it comes out of left field, and it's overall even-if. i guess that doesn't count. >> it's indicative in another way. it rejects the argument that if you don't otherwise have standing under the governing standing rule of the day, that you somehow have a special license to bring a 10th

amendment claim, if that's what it stands for what was right then and continues to be rights. a second point is it is victim. if you read the sentence, what it says is the following. it makes a reference to what it's already established a couple of paragraphs earlier which is the state's at issue here passed laws to accommodate the sales of power. it goes on to say if this were not so, well, what is that? it's a hypothetical. it's the worst kind of victim. if this was not so, if it was not that the states took action to affirmatively accommodate, then there's a different question and no standing. it is victim and disregarded as such, but really, if you ask what you should do with it, do what you did with some language and opinion that it continues to cause trouble in the 50 years since. that's moo longer -- no longer good law. it's not. the central holding of the

tennessee electorat was overthrown years ago. i think this language of the peace of the legal entrance test of standing, and i think the court should make clear it doesn't apply any longer, and the virtue of that is it frees up the lower courts to decide the claims based on an application of principles. that's not happening in the lower court right now. in the lower court right now is somebody comes in with a 10th amendment claim of whatever stripe, and what they are confronted with is a quick citation of tennessee elect and others who overturn the decisions, and that's it. nothing subtle about the particular claim, and that's not a sustainable situation. in fact, i reserve the remainder of any time. >> thank you mr. clement.

>> thank you chief justice. as confirmed this morning, the claim made about the unconstitutionality of section 229 is it under mind the powers. he wishes to waive part of that claim as an argument that it invades the problems that belong to the state concerning criminal law. he can do that. he has the authority to make such a challenge and the holding to the contrary. the third circuit in reaching the conclusion relied on this court's decision in tennessee vs. tda. we think that the court of appeals misread that case in concluding that it is our standing not because it lacked the holding that does bar standing of certain types of claims that allege an invasion of state sovereignty, but because the kind of claim that petitioner is making is not a

10th amendment reserved rights claim, but instead an enumerated power's claim. >> it's kind of hard under precedence to draw that precise line between enumerated powers and the 10th amendment, and it seems a bit much to put the defendant to the trouble of trying to do that under the theory from tba that they have no standing to make a particular type of 10th amendment claim. >> mr. chief justice, i don't think the defendant needs to be put in any trouble in this case. the kind of claim that counsel is making on her behalf does assert her right not to be subject to criminal punishment under a law that he says, counsel says, congress lacks the authority to enact. >> well, what if she argues on remand, if there is a remand, that assumes for the sake of argument, congress can enact any law that is necessary and proper to implement a treaty, the 10th

amendment prohibits certain law that intrude to heavily on state law prerogatives, state police power, if she makes that argument, where does that fall? >> the enumerated category power. just like a case last year, one the elements this court looked at when it decided whether the law authorizing civil commitment in that case was within congress' enumerated authority and the necessary and proper clause, the court looked at to which the law accommodated state interest or invaded them in an unlawful matter which is what mr. comstock alleged in that case. >> you want us to say even if a defendant in some case in a constitutional violation is causing that defendant specific

injury that the defendant may not be able to raise the claim of what you call a sovereignty claim. in thornton vs. arkansas, the term limits case, we allowed a citizen of a state to bring a challenge, to a statute that the state that it acted inconsistently with its federal powers. now, that's a flip side, that was state statute and not a federal statute, but it seems that's in position with the statement you take. it seems inconsistent with the rule of separation of powers claims can be presented by defendants. in clinton vs. new york, a veto case. the whole point of separation of

powers, the whole point of federalism is that it adheres to the individuals and his or her right to liberty, and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised? i just don't understand your point. >> justice kennedy, i don't take issue with almost everything that you said. the structural protections of the constitution can be enforced by individuals under the cases that you have sited. what we are dealing with are two things. first of all, a statement this court said that was port of its holding addressed to what the court perceived as an attack based on a specific aspect of state sovereignty that belonged to the states. now, today, we might not understand the claim that we made in that case has implicating a specific sovereign right protected under the 10th amendment. today we might look at it and

say this is nothing other than a preemption claim. >> i don't know if that's a correct characterize of the case made. the discussion of the 10th amendment generally follows a caption that the power to dispose of federal property does not include any power to regulate local activities. i don't understand why that isn't the same kind of delegated powers argument that you say petitioner here is raising. >> that may be, justice alito, i think it's hard to judge precisely what they were arguing, but this court understood the claim as one that bore on federal regulation of purely local matters in a matter that regulated the internal affairs of the state, and i agree with you today that we might not view that as a 10th

amendment claim, but this court did in 1939. >> why didn't it just consider it outside the commerce clause? that had a lot of lure. what is the distinction between saying as they said then, court, the tba regulates electricity rates in memphis, and that's beyond the power of congress to enact. in this case, because of the 10th amendment and a lot of other things, and this seems the same, beyond the power of congress to enact. >> through today's analytical model, today's jurisprudence, that's how the case would be proved. >> how do we know that? i'm not doubting you, i just want to know. >> the sentence that you in fact read discussing whether the presence or absence of the state objection mattered, the court said as we see there's no objection from the state and if

this were no so the appellant's state and officers have no standing to raise any objection under the amendment. >> let's assume this hypothetical. just that case, tba, state, the federal government sets the price, and someone's accused of violating that price. can that defendant come in and say tba, that's unconstitutional because prices have to be set by the state. can the defendant say that, or is than a claim that they are barred? >> that's the kind of claim today we con deny con con accept chewablize. >> give me a hypothetical of a defendant convicted where it's a

pure claim that you say they have no standing for. imagine going back to justice kennedy's question because i wanted to answer the part that i thought distinguished a case that i thought justice kennedy talked about. it's best made in the context of an example. under the sex offender registration act, defendants have challenged the law on numerous grounds including number one, congress lacks its constitutional authority under the commerce clause and the necessary and proper clause to criminalize the individual registration requirement imposed on them. all courts that have addressed that said that's a claim that's within the cognizance of a defendant to break. defendants have also said the statute violates federal law because it requires states to accept sex offender registrations and comom deers

the states to have the status. >> if the defendant prevails on that argument presumably the statute is invalidated and the conviction is overthrown. why doesn't the defendant have the appropriate interest to raise that argument? >> justice kagan, this is the crucial point we've been discussing this morning. a state can choose to establish a sex offender data base and to receive registrations from people who are required to reg strer under -- register under federal law, and validating a federal law that commanded them to do that does not deprive the state of its ability to say we want to have in our sovereign interest a sex offender data base that will receive these applications, and as a result -- >> you're saying there's no

violation. >> that's correct. >> everybody goes home. >> the reason why in that hypothetical the defendant should not raise the issue because there will be no violation -- >> that's a merits question, not a standing question. why don't we just say the defendant has standing to raise it, and then he'll lose? >> you could say that, justice kagan, but i think part of the enduring force of tba is it adopted a third party standing rule that's still part of this court's jurisprudence. >> could couldn't you say the same for tba? companies -- yes, the federal statute requires the companies to charge this pries, but they -- price, but they might have decided to charge it on their own anyway, and therefore you have no standing. >> well, the court said there was no standing on the ground that when the specific argument was made, this takes away the right of the state to regulate

because the federal government is regulating. >> is it your concern that there would be a clash in these cases? you've given the example of the state wants to have this registration system. suppose the defendant can raise that and would prevail. well, the state is not party to that suit. its interest has not been represented. is that your concern? >> that's a major factor in third party standing. >> suppose the state wanted to be and like sheriffs to take down the reg strag law. >> they can do that. >> i have serious trouble with that. a state can scrender its -- surrender or consume more authority on the federal government than the constitution does? >> no, justice kennedy, but a

state in its sovereign decision making process can elect to participate in a federal program. at least that was what justice o'connor said in her concurrence in print. >> standing doctrine able to give you the protection that you're looking after if indeed you can't tell whether the state did it because it was compelled to or because it wanted to, there was no causization, and you don't have standing. >> that is is a perfectly acceptable root of announcement. >> i would rather use that than inventing the new one you urge upon us. >> i don't think they are different. they both concern who holds the right. >> let's use the one we already have and not get into developing one that i've never heard of before. >> i think justice scalia that

the government is just applying con vengessal -- conventional standings which was made clear and it's not before the court today. this is -- this happens to be the only specific aspect of a state sovereignty claim distinction from a powers claim that the court recognized in recent decades whether some other sort of claim of state sovereignty might someday be recognized and require its own analysis is well beyond the scope of this case. our point is a much more basic one. we agree with petitioner's counsel that he can raise the claim he's tried to raise. we think that the third circuit misunderstood what the tba decision purported to say when it rejected standing for a type of claim, and we think that the currently recognized state sovereignty claim fits into the

description of the analytical category addressed in tba. >> is this analysis different in any way because this is a treaty power claim versus a commerce power claim? your briefs go back on forth on what it is. it emphasizes the commerce clause power, but your main brief was saying this is a treaty provision challenge. >> justice sotomayor, i believe the statute is valid under the treaty clause plus the necessary improper clause analysis in missouri vs. holland and sustained in our view under the commerce clause following directly when the court said that the intrastate regulation of commodity used in commerce is a typical method that congress utilized. it gave us examples of that. the nuclear bilogical and plastic explosive statutes

enacted to implement treaty obligations of the united states. >> given the breath of this statute, that's a very far reaching decision, isn't it? suppose that the petitioner in this case decided to retaliate against your former friend by pulling a bottle -- pouring a bottle of vinegar into the goldfish bowl. that's a violation, possibly life in prison, isn't it? >> i'm not sure. i'll assume with you it is. >> if she possesses a chemical weapon. >> i'm not sure if vinegar is. >> it's a weapon that includes toxic chemical. a toxic chemical is a keep kagan that causes death to animal malls. i believe by pouring vinegar in a goldfish bowl would cause death to the fish. that's a chemical weapon. >> i'll accept it is a broad

reaching statute, but it was adopted as a broad reaching statute because this is an area like the medical marijuana where effective control of the intrastate market requires the control of the market. it exempts peaceful uses for farm pharmaceutical and agriculture uses of the chemicals. there's other exemptions as well. it was intended to be a comprehensive ban that implemented the united states treaty obligations to eliminate the use of chemical weapons both in military instances and in terrorists. >> the difference is race involved one commodity, marijuana. this involves a potentially thousands and thousands of chemicals, and you would make the same argument with respect to every one of those chemicals? if you take together all the people who would use vine vinegar to kill goldfish or others who use antifreeze to

kill dogs, put that together that has an effect on the interstate market for antifreeze or vinegar? that would be the argument? >> well, i think it's pretty well recognized justice when they have a question under the commerce clause, it can control the intrastate market as necessary in order to assure that its prohibition is effective. >> do the people know that you're doing this? [laughter] can you really argue that this statute is designed to drive vinegar out of the interstate market? >> no, of course not. >> are we getting into the merits of the case? [laughter] >> a lot further than i intended , justice scalia. [laughter] >> the merits of the case involve a commerce clause argument, a treaty based organization. as far as the standing klaus goes, there's no difference between them. missouri vs. holland was a case

this court adjudicated whether a law exceeded authority, it did that at the heads of the state, but there is no reason under places like lopez and perez that an enumerated powers argument is off limits to a criminal defendant. it's not. this case goes back down to the third circuit. a petitioner can make the argument that this law exceeds the interim rate of powers. we can rely on the clause, it's not outstanding in any way. i think the support of the judgment makes the assumption that because missouri vs. holland is good law, there is no possible claim that petitioner can make that the law would exceed congress' enumerated authority, therefore, it says this must be some sort of a special state sovereignty claim of a genera that looks like come deering. we doesn't understand to be making that argument and they

confirmed that's not what she's trying to do, and there's no 10th amendment claim on state sovereignty that the petitioner ever made. in fact, if you look at petitioner's brief in support of the procuring pretigs, he said the 10th amendment argument raised by bond was not critical to bond's other constitutional challenges. it is ancillary to the main argument that congress acted outside of its enumerated powers. i think that's a correct understanding of what petitioner has sought so argue in the court below, and in our view, she's entitled to make that argument, and that argument should fail on merits, but that's not an issue this court decides. >> in the category you would like to have, you said commondering, but there could be

others. could there be anything also falling on that side of the line? >> the court indicated that moving a state capitol might be an intrusion on sovereignty. >> likely to come up in the criminal case? >> highly unlikely. >> thank you, mr. dreeben. >> thank you. >> mr. mccallister. >> thank you. nobody disputes here there's article three standing. one of the difficulties in the case is it's the only case that mentions standing in this context is the case, and it clearly says if it is, in fact, a 10th amendment claim unless you have a state official or the state, there is no standing.

>> pretty harsh talking about prudential standing to deny that? >> it is harsh, but there's lower court cases that it's been done and criminal cases and the court said no. she still has several other claims here. we all agree you can characterize her claim as an article i enumerated powers claism. this court assumed many times that the defendants have the standing. this court generally has not discussed it, but assumed it, and so there are cases that say no standing for criminal standing. she maid a 5th amendment doo process challenge if she had other claims even the treaty power cases like reid recognizes you can raise that claim, but the court's cases do distinguish between 10th amendment and other claims, and the argument is what on the 10th amendment side of the line, and what's the lack of

power for a better word, whether it's on article i, power doesn't reach it, and in particular, i point to the heller case that the petitioner mentions in the brief, but it off by one page and that's what the court should focus on. pages 579-580. there is three times the word the people is not talking about individual rights. the three examples is the preamble, article i section 2, and the 10th amendment, and the courts of these provisions are about reservations of power, not rights, and also the print in the new york vs. the united states cases say there is something substantive about the soth amendment -- 10th amendment. >> excuse me. would you say specifically, there's a lot of discussion about labels and what the labels mean in this case, but tell me specifically, not the word she uses, but the specific ways in

which prudential considerations bar her standing. meaning what about the nature of her claim prudentially should counsel us against giving her standing? >> a couple things, your honor. one is usual rule of prudential third party standing considers the alignment or lack of alignment between the third party begging the claim and the party who is not present on whose claim it really is. in this case, there's no argument that her interests aligned with the commonwealth of pennsylvania. the commonwealth, in fact, prosecutorred here, and it did not stop her. it was unsuccessful. later, when local police wouldn't be involved, the federal government got involved. >> do you think pennsylvania would be upset that the federal government got her when they couldn't? >> no, that's my point. my point is her interests are directly contrary to pennsylvania's interests. she's not stepping in saying i share the interest of the state,

therefore let me argue the interest of the state. >> in another case conceivably, the state attorney general can exercise his or her prosecution discretion not to prosecute to woman or prosecute her under the antiterrorism law that gives her eight year. isn't that something for the state to be concerned about? we want to have the discretion of whether to prosecute or not for standard crimes that have no relation to interstate commerce or any other federal power. >> well, it's standard that both sovereigns have the ability afternoon to prosecute if the definitions of prime overlap, and there's nothing from pennsylvania from punishing her. >> she wants the argument that the definitions don't overlap and this is a strictly state local crime and any attempt by the federal government to convert it into a treaty based

terrorism crime is erroneous. >> well -- >> that's what she's trying to do. why doesn't she have standing to make that argument? >> the lower courts in their defense understood this to be a 10th amendment claim. in this case, neither the government wants to talk about that or argue about it, and instead talk about the rehearing after the third circuit decided the case. if you look in the joint apen kick, pages 26 is the brief that her lawyer filed when the third circut said both arguments, wait a minute, maybe this is a 10th amendment case. the government said, hey, good idea. we don't think she has a standing, and she did not come back and answer i'm not making a 10th amendment claim. he answer was i'm making a claim, but i was a standing to make. >> that single sentence -- i'm trying to figure it out.

it doesn't seem to refer to all 10th amendment claims. there's a footnote, and he talks about no standing in this suit. if you look back at the lower court case, it seems to be referring to a particular argument where the challengers had said the property clause doesn't give authority to the government to pass this. the reply was, that was true in alabama. the court said it was okay. then the challengers say, oh, but alabama agreed. and then georgia doesn't agree. it was in that context that georgia says, this doesn't make any difference, but if georgia was going to disagree or agree, if that's what it turned on, you better have georgia to say whether they agree or disagree, and not have people who are not georgia. that's what he seems to be saying to me at the moment. if i'm right, what's comparable to that in this case? is there a claim she's making it would be constitutional if they

agree in the state and it would be if not? i don't think so. i think it's constitutional irrespective. >> she's arguing a lack of power. >> yeah, yeah, if that's so, how do we take this sentence as void? >> well, again, the sentence -- i mean, if we're talking about the sentence? tba, barring 10th amendment claims -- >> it just says in this case. >> it says in this case, but there's no suggestion that -- frngly it's hard to understand what this case was in terms of the fact. it's a confusing case. >> he cites. there's a footnote. you read the page, and you get an idea. >> for that particular instance and that's the idea the court had in mind. the language is not limited to that particular instance. it says if this is a 10th amendment claim, there's no standing. that's why the lower courts have wrestled with what is a 10th amendment claim because tba is there.

the court announced it. if it is a 10th amendment claim, there's no standing. back to sotomayor, the answer to the question is is this issue if she's a good person, yes, there's article 3 standing, but not necessary to make every constitutional claim one might think of. in the 10th amendment context, those claims belong to the states. they don't create individual rights, and, in fact, there's good reason to think the states do get involved when they perceive actual 10th amendment violations. >> can you just articulate for me -- we're speaking general railties -- generalities. what is in the nature of her claim, to put the labels away, do you think is a pure 10th amendment challenge? >> well -- >> i read her -- >> i read her claims and it's a

10th amendment claim because congress and the president exceeded their powers. >> as i understand the complaint, her argument is unless this statute is authorized by something in article 1, section 8, the first 17 clauses, there's no power to enact it, and that's why this case is frankly not clearly governed by lopez or morrisson. they were claims under section 3. this is a treaty power case under set article 2, and she just wants to read the first half of the necessary and proper clause that foregoes the powers. >> you happened to have answered my -- you haven't answered my question. why is that a merits decision as to whether or not the president and congress have the power to enact this legislation? >> well, your honor, in essence at the end of the day, it will be a merits question, but from the standing argument, trying to

define what is a 10th amendment claim and the point i was trying to make, perhaps not successfully is that she's not saying, well, she is sort of saying the article 1 section 8 enumerated powers are the limits, but frankly, they can't be the limits. in light of the plain language of the necessary and proper clause and missouri vs. holland and under the treaty power, those powers are not limits. she's asserting the limits by making an article 1 claim. that allows her to always have standing. the plaintiff can say this is about article 1. this is not about the 10th amendment. at some point, the court has to drill down and characterize what the nature of the claim is. >> why do we have to do that? it seems to me there's been discussion about whether this is an enumerated powers claim on a 10th amendment claim. they blend together, and it seems to me difficult to put on

the defendant the responsibility to decide if this is a 10th amendment claim. the basic principles do kind of merge together, and why does it make, again, why does it make that much of a difference, and why do you put the burden on the defendant to par the claim one way or another since i io soup they can make the same arguments under the enumerated powers clause. >> well, in an enumerated powers case, yes. the problem, i think the difficulty with this case is that it's unusual in that there still is a revibrating from the court. the government has said throughout this is a treaty power case, treaty power case sphrn the oral argument in the third circuit and the judge wanted to decide it on the commerce power, would that not be the easy route, and the government lawyer said, no, that's the hard route.

you need to decide it on the treaty's power. it's just mere image. the congress power doesn't go that far, and it's reserved under the 10th amendment. it's not an article 1 section eight -- >> i guess i don't understand why that makes a difference the the necessary rein proper clause says. but the question is the necessary and proper clause and what it aclows congress to do -- allows congress to do. whether it's a treaty power case just doesn't matter. it's all of question of what congress' scope of authority is under the necessary and proper clause. >> well, i disagree, somewhat, your honor, respectfully. her argument about the necessary and proper clause is i don't think -- she's not arguing it's an

improper way of the united states, she's arguing that the treaty power itself does not give congress the power to enact section 229 unless in essence you don't need the treaty because you have the power that the government does under the first 17 clauses of article i section 8. yes, the necessary and proper clause is the connection here to article 1 section 8. she's not arguing sort of, i don't think, the kind of argument that this isn't tied to some sort of articulated power. the government has power to enter treaties under article 2 section 2, and so that to me is a distinguishing feature from all of the other article 1 section 8 cases. i agree, i don't think i can stand up here and try to argue to you this is a true 10th amendment case if, in fact, this was litigated as a commerce powers case all along. >> i'm going to try to understand what you said. are you saying she is argues

that congress does not have the power to enact legislation that is necessary and proper for the implementation of treaties, but only for the making of treaties, that she's making the argument made by some academic writers? >> no, i'm not sure that's what i met to say, justice. it is a treaty power because she is saying that the statute has to be based on something in article 1 section 8 in the first 17 clauses. if it's based there, then the treaty power adds nothing to the ability to enact legislation. that's inconsistent with the plain language of the necessary and proper clause, the fact that the clause is in article 2, and not section 8. in her view, as i understand it, and i'll be corrected if i'm wrong about my understanding, is

that really you don't need a treaty. the treaty doesn't add anything. it may be the reason that congress decide at this point in time to enact section 229, but i believe as i understand the argument if congress has the power to do it, united states never needed to enter a treaty in order for congress to enact section 229. as i understand the argument, the treaty power adds nothing to the domestic legislative authority of congress. >> mr. mcallister, have you found any case other than this one where a criminal defendant was left standing to challenge the statute under which the defendant was prosecuted? >> not in this court, justice ginsburg, but there's examples from the 8 and 10th sir cults involving 10th amendment claims saying in light of tba the criminal defendant does not have

standing to make that claim so there are examples in the lower courts. i'm not aware of an example in this court. i would say this too about the some argument of the separation of powers cases in which the court has that allows individuals to make that claim. again, because we're talking about credential rules and third party standing, or at least time talking about that. one consideration is in those cases whether it's clinton vs. new york, the recent free enterprise case, the government is present. it may represent the defendant no those cases or simply intervene, or if it get noticed it's unconstitutional, the difference in the 10th amendment setting is there's no mechanism practically to solicit the states for their interest. if someone is raising this claim that says the government is intruding on your interests, there's no microphone to allow -- mechanism to allow the states. if the states are aware of it,

perhaps they are allowed to. >> is that an issue for civil lawsuits opposed to a criminal one? all that happens in a criminal a suit is a defendant's conviction would be undone, but that doesn't mean that the state is bound in some way. the state was the party of the criminal action. >> well, the state isn't a party, but what is said in those cases about the scope of the state's prerogatives vis-a-vises federal could be brought to bear. the concern in the third party standing case is that you're not a party, but someone else is making arguments in the sense on your behalf. they lose because perhaps they don't know all of the arguments they should be making or they don't articulate them the way the state does. there's effects to those decisions. >> well, there's two things that could happen. one is if the state loses, then, and it doesn't want to lose, it

passes its own law, or if it wins, which is the case isn't favored although it's the status quo, i still doesn't understand what the long term injury to the state is or could be. >> well, i guess, again, and maybe i'm misaprehennedding, but the long term interest is a decision saying in the criminal case that says, no, this doesn't intrude on the state's sovereignty is there. if in a later case the state, in fact, wants to assert this particular statute intrudes, it's not that they can't raise the claim, but they will confront contrary precedent that the state never had a chance to voice the opinion at the time it was addressed. >> you're underlying premise is that the individual has no interest in whether or not the state has surrendered its pour -- powers to the federal government. i don't think the constitution

was framed on that theory. >> well, justice, i don't know that they don't have an interest, but the premise i'm asserting is they do not necessarily get to a 10th amendment claim of the states. new york vs. united states, for example, was a case where the state initially said we're not concerned about this regulation, and then change the its mind, and the court in new york says states don't waive those 10th amendment rights. the state can change its mind, and there's no indication -- >> it does aseem as justice kennedy said the reason it's there in the constitution is only for the benefits of the states, and not for the benefit of the people in the states, so if a state chooses to give it away, the individual has no standing. you say it's third party. we're raising the state's rights. i think what the other side is arguing is this is not a right of the states, but a right of the individual to have the state take charge of certain matters

and the federal government take charge of other matters. i don't see why that's difference from an article one section 8 claim. >> the the conclusion, the court can reach, but what the petitioner's position essentially holds is that there's never a question of third party standing for any claim under the constitution basically, not the kind i'm talking about and that no claims are limited to certain categories of the litigants. >> there's a question of causality, so some of them will not be valid because you can't show that the state was coerced into doing something, and therefore you can't show that the violation of the constitution caused your injury. >> that's -- but causality is article 3. what i'm talk about is separate. the petitioner's view is third party standing is out the window whether it's separation of powers, 10th amendment, anything. >> thank you.

mr. clement, 10 minutes remaining. >> okay. thank you. one reason not to carve out the special rule for claims is that not all claims # are created equal. they raise the claim that it's litigated in the context of sorna. i don't know the details of that enough to know whether that's a common claim or not and whether there's a redressability problem in that case, but i can imagine the claim in that case and local prosecutors to prosecute local crime. s the problem is right now the lower courts are not resolving the standing issue in the challenges based on a careful analysis of article 3 standing redressability or prudential standing for that matter. they resolve the standings where a tennessee electorat and let's move on. that should stop. a second reason you should not carve out cases as being somehow

the residual of the victim is it just talks about the claims. we are disagree or agree and it's hard to figure out what the nature of the claiming was. i don't think it was really much different from the claim we're raising here which is in tennessee electric they said the state gets to have the prerogative of the price for power. here is the federal government going in and prosecute you for putting vinegar in your neighbor's goldfish bowl. . .

that the utility companies have standing. so, when you see is when you apply the legal interest test you complete the merit and the standing questions. it's kind of happened today in oral arguments. that's a bad approach. it should protect the decision by singing the sentence no longer survives. two other minor points. one is on the commerce clause i think justice alito shows what the government was right never to make the argument below but i do think it's important that if the court says anything about the commerce clause issue it doesn't reinject in the case the would not allow us to argue that it's been clearly waived in the third circuit. the government guests to confess, it doesn't get to confess we have a better argument to defend the statute we've never raised before.

it should be a two-way street and they should not be allowed to sneak the commerce clause back into the case at this late stage. finally, there is no difference between the separation of power states and federal laws in case. the best example of that is the courts free enterprise fund case. when it wants to cite the proposition that the executive branch cannot wait for acquiesce in the separation of powers violation because the separation of power is there to protect the individual what does it site? new york against the united states. please reverse the decision. >> thank you. mr. mcallister the court appointed you to argue the case in support of the judgment. you able the discharge that responsibility for which we are grateful. the case is submitted.

there's a new way to get a concise review of the day's events. it's washington today on c-span reappear every week to be taken to capitol hill, the white house and anywhere news is happening. we will also talk with the experts, the politicians and the journalists as we put the day's events into perspective. the stories that matter to you the most every weekday, five to seven eastern time on c-span

radio. you can listen in the washington baltimore area at 90.1 fm and nationwide on the xm satellite radio channel 132, or go online at c-span.org. it's also available as an iphone app and you can download the program every evening as a c-span podcast. former president clinton recently posted a forum marking the 15th anniversary of the signing of the dayton peace accords that ended the war in bosnia. speakers include the presidents of bosnia and croatia, the european union foreign affairs representative and deputy secretary of state jean steinberg. this discussion was hosted by the william jefferson clinton foundation at new york university. >> ladies and gentlemen, i am pleased to introduce president bill clinton, founder of the william j. clinton foundation our 32nd president of the united states. [applause] >> thank you very much.

first, let me say i want to personally thank secretary all right, ambassador galbraith and general wesley clark for a great panel this morning. i thought they did a terrific job, and i hope you did as well. we are going to talk now about the dayton peace accords, what's happened 15 years later, and where bosnia and the region go now. something dick holbrooke used to say all the time is that dayton was far from perfect peace. the tracing of november 1995, was between an imperfect peace and we did everything we could to convince the parties to

choose peace. we knew at the time that it was just the beginning, and i want to say a few words about what we did. but i would like to begin by placing the last question ron brownstein asked is relevant to what this panel was going to discuss. the last question that has to deal with this was the model used to bring about the peace agreement, the work the united states did, is it a good model for the challenges we face today since relatively speaking there are -- it is a more multipolar world. and so, again, to go back to what i said in the beginning a little bit, i was quite well

aware that from the moment the berlin wall fell and the soviet union began to break up and russia was then quite weak economically, as i said my very first international effort was to organize the 24 billion-dollar package for russia. china was rising but nowhere near the level of economic or military capacity that it has today. the scene with india. it had begun its economic reforms very recently only in 1991, and ron brown had identified as commerce secretary other rising countries that he believed what shape the 21st century would create this multipolar world in ways we hadn't imagined and we decided

we had to focus on them both to try to build relationships with them, to keep bad things from happening to help good things happen. he identified mexico and the brazil and the united states and we had a major crisis in mexico and twice i moved to put together major packages to help brazil and that is almost inconceivable now the brazilian economy is so strong, but they were at serious risk than. we identified that nigeria, south africa, and africa and south africa seems to be on a better path now but a lot of their economic and political resurgence was the real by the aids crisis and nigeria has challenges we know both of them occupied a lot of my time when i was president. it identified poland and ukraine

and europe, and poland has done pretty well, but we all know that the ukrainians have claimed their democracy and then had a terrible economic time and are now in the process of redefining we identified indonesia and caribbean and asia and we had a big change away from dictatorship in indonesia and then ended their ethnic and religious conflict manifest becoming the more the because first nation of the 21st century. and bridging it all, turkey. so, i guess what i would say is i thought this was a good model because i was perfectly aware that it was a fleeting moment in history when america really had only military, political and economic superpower. and i used to say to your

security team all the time, you know, china and india have more people than we do so it is just a matter of time until they generate more wealth. and if the europeans keep coming together politically and economically, they will have more people than we do, and many of them already have a higher average income in the united states. when someone ads as much money as you do, then whether you're the only economic and political -- excuse me, political or economic superpower, it is more up to them than you. when the chinese decided to build new submarine fleet, diesel power submarines and go deeper, faster, quieter than our nuclear fleet. so to me, in addition to the humanitarian and regional and european implications of bosnia, this was about trying to find a way to put a decision making

process in place that would create a more unified world that would have the forces of integration, overcome the forces of disintegration in the world when the united states was no longer the biggest dog on the block or the only big dog on the block. i wanted to create a world that looked like for my generation's children and grandchildren to live when we could no longer dominant but have to leave. and what is really changed is two things. one is there's more competition for influence and power and this capacity well dispersed. also frankly our economic weakness made it more different for us to be taken as seriously as we otherwise would be in the long term. one of the things that distressed me most about the

last election is the framework in which it unfolded. that is once again we got stuck in a time warp of saving this election is about who wants more government, who wants less, who wants more government spending and who wants more tax cuts. that's a silly thing. there's not a single successful country on the planet earth that doesn't have both vigorous and successful private sector and an effective government. the real choice is what we have to do to create the future and are we more committed to making the changes that will create the future that gives us the economic strength to exercise political and military strength or are we so caught up in what we have now, with its somebody at my income group who wants to hold on to my tax cut or are we simply on the public or private sector who wants to hold onto some other benefit at the cost of which is out lead by the future the management for our

children and grandchildren. so, i set that up to say what we try to do after dayton is to recognize its limitations. most important thing with most tragic results of course was the great mission ron brown and first, think you for being here today and all the others from the commerce department and the business community took because we knew we had to create a new economy for the balkans. so that is the background. what is the balkan equivalent of what we did with the asia pacific economic group which has been expanded? what's the equivalent of the expansion of nato? what is the expansion of the summit of the americas which we rekindle for the first time in a quarter-century? is there a unifying systematic

contribution the united states can make and what do they have to do on their own to make all the sacrifices of the people who actually gave their lives to this endeavor and the efforts the the united states and the europeans have made with? this is going to be a very good panel. and so i want to bring them out. the first is we are deeply honored to have kathryn ashton who is a representative for foreign affairs. that's a fancy way of saying she's a secretary of state of europe and a very impressive one at that. i thank her for coming in by thank jim steinberg the deputy secretary of state for coming and getting all the challenges they are facing the state department today and he's probably glad to have an excuse.

i want to personally thank the secretary of state for allowing him to come. [laughter] i want to acknowledge the president even though she claimed to be absent and i wanted to say one thing about i admire her very much at the u.n. charter hell she gave me in the first two years i was president about the american army into sarajevo and brimley slightly over seating it. was a gift. it was a gift. there are sometimes relatively few when you can say a single journalist had a decisive impact on the lives of people and the

set of political decisions that follow. but i've already explained to you -- use of a popular opinion was, you saw where the congress was. the europeans were reluctant to get into this bosnian anbar leal because they were not sure that fix it and believe it or not, there are all sorts of excuses including the fact that then president who i admire. like three much had really had a soft spot for the serbians going back to world war ii and the fierce opposition to the nazis and he couldn't believe they were as bad as we were saying until they were, until the double cross, and i think -- going back to the previous panel said, i don't think there is any

question and the changing security situation on the ground brought the europeans to the position that we have been advocating and dick holbrooke had been trying to implement with others. but i do think that in creating that climate had a lot to do with it and i thank her for that. most important of all, we are joined today by the president of the republic of croatia, a lawyer in the this is important to me, a composer and it's important because he now has to compose a future for his country and for the region, and finally the president of the nation at the center of all this,

president izetbegovic, who is an architect and has to build his way out of where we are. president izetbegovic was preceded in the leadership put his father, now deceased, who was a person with whom i had the honor to work, and whom i had the honor to visit in the hospital not long before he passed away. he was a magnificent person. this family has played a great price to surf and struggle for the integrity of the country and for its future, sallai thank president izetbegovic dni thank ashton and jim steinberg and i would like for them all to come out now for the second panel. thank you very much. [applause]

thank you very much indeed and mr. president, thank you for the wonderful introductions and for the very generous words you just spoke. it was, as you all know, and the era of defining war and peace, and for those who coveted it, it was a professional and personal defining moment. so i'm delighted to be invited to come back here and talk about the future having half tecum -- after having witnessed the president at that time. can i start with -- it is what to start with jean steinberg risk devotee national security adviser at the time and the state department at the time. i would like to pay tribute to richard holbrooke because it has richard culbert's name of course

on it and just to go back briefly because the negotiations with the detention brought devotee to have led to the bombing of targets and having brought it to the point where it could actually have a negotiated peace it wasn't inevitable that the treaty had led to dayton and pulled themselves up for that many days. it wasn't bound to happen, was it? >> thank you. that's right. it was, for anybody who had the privilege of actually being there held in dayton quite an extraordinary moment because on the one hand, you had going on in the outside this portable terrible human tragedy, and in the room people who were responsible for them and trying to find a way to on the one hand not recite the enormity of the crimes being committed on the outside and yet the need to deal with these individuals and try to find a way to reach an

agreement. and i think there are many that can be given but perhaps the most important was he understood the history of the region and the background of the conflict and didn't see it just as something that happened today or yesterday or even with the fall of communists but understood its history and he also understood the individuals. he knew them and he knew that he knew each other and there was one of the extraordinary things about that is on the one hand you had this slaughter going on the upside and three men who were part of the political establishment and he used that and played that dynamic to make a difference. and just a kid that -- put it to the future what was so extraordinary is when richard came back to serve president obama as the special representative for afghanistan and pakistan he couldn't let go and he saw on my schedule one day i was meeting with who was then under consideration to be

the new descendant of everything that he had done in dayton. and he called me up and said i'm coming to a meeting i want to make sure he is good enough to make sure that the work is carried on and sure enough, the game down and sat in a meeting and asked the questions and stayed with it and it was his passion and his achievement that we have to pay tribute to. >> that's a wonderful anecdotes and none of us can that of the balkans and of what happened there. i want to start by asking you because jim steinberg just talked about the slaughter going on, and you have made to reconciliation a hallmark of your time in office. why is that and do you think that is a precondition for civil defining what a piece? >> it is guided for the future of the neighborhood of croatia itself. its confidence and trust, its

solidarity and partnership and it's very important to build confidence between the leaders and countries but the basis for all of this is reconciliation. i think it is a very the process to the other requirements i started to build with our neighbors with serbia we had slovenia and others and it was not always an easy task because there were opponents to wait and i have to stress here and pay tribute to president clinton because they stopped the war and was the most important thing at the time and the president

clinton clearly showed the difference with being an office holder and leader and he was a leader and i think that their region now needs leaders, not officeholders. it means we have to have capacity to see the future, and if i may say our european future. croatia i think would hope to be very soon. one of the important strategic things we are considering is how to help our neighbors to join the e.u. as well because this may guarantee security and the economy as well but reconciliation and such. >> let me ask you, president izetbegovic, 15 years later to still be talking of reconciliation may sound, you know, a little strange.

do you think that reconciliation has happened in bosnia? is a solid? >> at least i think 50 years ago and it was almost in the 15 years, but it takes time for the proper reconciliation. you cannot expect bosnia, have the population expelled from their homes and hundreds of thousands of disabled persons. it's not easy to solve all those problems in 15 years. some people especially in bosnia expected to much from dayton. you cannot make a perfect state or not the perfect institutions from that situation come from that moment in bosnia. the ethnic groups to fight each other and then we expect the

state, but the core, the main fundamentalist down by dayton. it is for the future, better future for building the institution for the reform and the reconciliation and the main thing of course is the reconciliation. that's the fear from the future with different ethnic groups. it's absolutely much better in each cents in bosnia. it's much better it's a slightly clearer it is the glass is more than full and more than half of the journey towards the normal states. the time is there. >> that's really encouraging to hear. you have the president talking about the e.u. session.

give this audience an idea of the difficulties of actually getting into the e.u. andrew sum unlike croatia is struggling to get in and what happens to bosnia and serbia. >> i think the first thing i want to say is i agree that the future for a country of this part of the world belongs within the european union. we are currently 27 countries at the fired of war and the long shadow of the iron curtain. we know about conflict, a dispute, that there is a better opportunity in having people collaborate and working together politically and economically, and i believe whether europe is successful or not depends how effective we are in the neighborhood of mobus and that is a big, big challenge for all of the 27 countries and i guess especially for me. so it's important that countries

coming able to really take their place in europe so there's a whole lot of things that have to happen. getting the constitution and the right shape, sorting out the legal situation, making sure there is a single market economically. some of these things are quite painful for business, for countries to go through to be ready and the take time. on the journey that croatia has been on there has been a long journey, it feels very long, but we are towards the end of that journey. and the effectiveness of europe is how will we are able to support those countries to be ready. so when the two joined the can be fully participating 28, 29, 30 countries sitting around the table able to ask. >> jim, do you think the bar is too high? is a country croatia, bosnia, serbia had its issues?

its 15 years now since dayton. how long is a reasonable amount of time before being able to get into europe? >> i.t. we've learned over the years for the united states we are not cui to be judged by the european union, with its standards ought to be. we want to see the ball to him to become balkans, and with respect to nato to just say a word about that which is i think we all share the view of the location in the future for the western balkans is in the transatlantic structures and we will work hard and keep that door open for the countries to participate, but it's also true and it's something president obama has stress and psychiatry clinton is that this is not -- this is an alliance fighting the war in afghanistan that has serious security challenge and we expect we can help provide security by the membership in nato they also have to be in the position to contribute and so the bar is only the art of making sure that as they come

into the institutions that they can contribute and that it is not just being done to help them along their course and i think this is one of the fundamental challenges that we face because the international community had a great deal of responsibility. the united states took responsibility to bring an end to the conflict in india and the balkans and we share a strong commitment to that and helping support that future, but at the end of the day it is the people in bosnia and the other balkan states to have to make the decisions that say they are ready to do it, and what we have seen unfortunately is even relatively simple decisions like how to dispose of the state property from former yugoslavia so that we can get the military property going has proved up words to for periods of the door is open and we made the decision last year to open the door to bosnia's membership plans, an important step. we will keep that door open for bosnia to walk through but it does require the leadership of the kind the president is

offering to make sure that that happens. >> so, what can you do to make that happen faster? >> in nato we have some things of solving problems of military camps. we need to give to our armed forces and i think we will make it before september because the expect us to solve the problem before. >> what does the time bosnian heads of leadership need to do to get not just nato but into the e.u.? spec and member of practical things we are working with, for example, you know, what i was saying earlier about the need to produce pete. it's also citizens get treated equally across the european union so that you know the court system works and you know the way that you are treated is the same. so, for example, there are some

practical things that need to be done in terms of the constitutional court and the european court of human rights in the ability for everybody to stand for that election. there are lots of issues around building the economy to be dealt with all of which you can help with, but it's said it has to come from the people themselves. we don't impose the european union. we want to work with countries. they have to want it because it is a long journey. if they want it we will work together. >> so, if you want it enough you can work with the e.u. to get there and you hope i think that by january, 2013, you will be responded to a and welcomed with open arms. >> if we speak to the treaty negotiations -- >> with outstanding view.

it's very important to resolve some additional problems we had especially to the economy, and our government is doing the best to resolve those problems and also we are leading now the corruption that's very important and one of the key issues for croatia, and i think our results are pretty good, and we have to have contingency in our practice and very important not only to have good legislation and good practices and while we are trying to do our best. so just a few now are left open and we have to close them very soon i hope this year and then we are very near. >> just this audience me know a lot more about the details than i do. use a judiciary for instance. what do you have to do to make your judicial system acceptable?

>> we have a certain generation that means procedural rules. even a few years ago we had about 2 million unresolved cases. >> 2 million? >> yes. >> and now we have the capacity to deal with all cases because we have about 700 cases before the court would have to improve our legislation on the election of judges who have in partial very educated judges and prosecutors as well, and of course we have to exclude any possibility of political influence. i fink this part of the talk is now more or less done. >> jim is the leader of the bosnian serb republic. what do they need to do do you think?

i know the different level of the presidencies, but what -- what did the need to do, if anything, to make this process solidarity, reconciliation and victor integration? >> we could talk about specifics but i think there's a deeper underlying challenge here which is that as the president i think nicely said, the challenge here is to turn the focus away from its focus on fear and worrying about what you might lose to what you can gain by moving forward and because of all the difficulties that it talked about, many of the leaders are focused on protecting what they have, worrying that they will be taken in the vantage of when things are changed and they failed to focus on the benefits that will come not just to them but more importantly to the people they represent for moving forward. and so the focus of our efforts and has been a strong partnership with the e.u. and i am grateful to the united states

and the e.u. working hand in hand is to try to turn their extension instead of looking backwards and instead of what we might lose, and i think especially for some of the leaders there is this sense that we have to hold onto all this stuff and what we tried to emphasize is that you won't be at risk when forward but there is a bigger pie and big dividends to be had from the integration from moving forward but nobody is trying to fundamentally on do the dayton compromise, but there are things that could be in the will benefit all of the people of bosnia and we can motivate leaders and more importantly motivate the people as well as the federation to see the future to move it forward. >> let me see if i can press you on that because the last time i was there was a few years ago. i worked with richard and we were on the bosnian serb her planned and was trying to get

him to play ball, to get him to do what dayton was asking him to do. so how much difficulty is there in that relationship? from your perspective as an american and from the e.u. commission. >> when there is a fair and concrete benefit to be had it's surprising how principled people become, and so the liberalization which there was a huge public demand for europe and they pass the necessary reforms to permit to meet the standards for the civilization. they knew there was something they had to do. it wasn't easy but there is a concrete benefit of the other end and so that is again that is the challenge is to make sure the concrete benefits are there and there is enough pressure from the ground up on the leaders even if they are reluctant to do it to realize they can't turn around and turn

the voters. right now though in part because the dialogue is a very positive one, the press is an important factor here, it's a very fractionalized, it tends to focus not on the benefits of moving forward with the risks going forward, and so that's why i think the challenge is to keep the spotlight on what is needed, and i think what both of us try to do is when we go to bosnia i think five times over the last two years and i will be there in a couple of weeks is to talk to people and keep that trend and centers of the leaders understand there are people watching what they do and the choices they made. >> what pressure can you bring, what can the representative bring? because the press issue is one that we saw as well 15 years ago and the whole world the press, the local press is very into domestic. >> ichtegem would stop calling me leedy ashland. people call me kathleen.

[inaudible] [laughter] >> i think one of the allegis, which we have certainly not gotten right to get is the visibility in bosnia and i would argue even with croatia of just selling to the ordinary people with the benefits are. i kind of joke that it's true in the european as well 27 countries and i see this from the country i know it's not necessarily the front of the year with the decatur possibly the century and yet there are countries desperate to get in because they think from the top side with the benefits can be. but for many people, because they don't know what this would mean for them. yes, okay, we can talk about an end to the conflict and potential greater reconciliation. but actually it is more practical than that. what jim said is right. the ability to travel and trade more effectively, to have the huge market half a million

people to sell your products without any of the barriers he would have otherwise. to be part of a trade it is also doing trade deals elsewhere in the world, to be a part of the political work that goes on that actually saw all of these people on an everyday basis can make a difference, so one of the things i have got to do is work out how to be more effective on the ground and actually putting forward the position that europe means a better future for all of the people there. better jobs, better opportunity, and if we can do that we can make this. >> koza there has always been rumblings for years always been rumblings for years to the constitution of dayton should be changed or amended, this certainly the bosnian act felt that perhaps there needs to be some tweets given the reality of how what was done and now. is that still something you are trying to push for? >> yes, we would like to see the changes because we think that

dayton created too many possibilities of blocking its. all of those groups are afraid of the other, so they need some to be ruled by the others. but now it's time to remove those kinds. all of us have too many opportunities [inaudible] something that must be sold and this time to leave bosnia but we need the mechanism [inaudible] >> it's time. but if you remove, if you pull out, who will do the job. we need domestic ones and as i say i am an optimist. optimistic just like that. if you compare the situation 15

years ago, ten, five, then you will see the 60 institutional on the state it wouldn't happen so we have three armies, one was unified and three border controls, we have one and three in surgeons, now we have one, and in colombia, bosnia, complicated which started nostrum's evo but below grew to some 8% a year annually. almost 8%, and in bosnia it is higher than all of the neighboring countries. so it means bosnia can't. >> how do you account that? what is the economic growth in bosnia? >> we are doing our best, we are working in the situation. >> what do you have?

>> we have quarters, we have lakes, we have minerals, educated. [laughter] spec children all over the former yugoslavia, the education, smart, why did together and want to be part of the bigger world. >> they should be engaged in business and sports. >> it's an economic competition. >> are there anything you think need to be renegotiated, the constitution? >> i already paid tribute to the dayton, but there is the new circumstance and it is needed to be changed especially i think there are two steps. first, the whole groups must be

sure they can be participating equally in the political process and second, the obstacle for the e.u. and nato. i have to stress they are not lawyers [inaudible] there are three nations with very important culture. many people in the history from this area here before the u.n.. so, and when we enter the history our collective memory much more oriented to the common life and that is the basis for the optimism, and not only good will or capability of the father

of dayton, but the capability of people to work together made dayton successful and this is a very important message. >> let me say we americans are very taken with titles. [laughter] we spend our time talking about constitutional reform and together the u.s. and to try to the get some of the ideas that might move constitutional forward and there's no doubt there are things without the fundamental change, the structure dayton would allow functionality, i know the president uses a lot to focus on functional become a but the big difficulty that i see is that right now has the president said, people look to the constitution and the structures to protect their interest rather than building a political culture of trust. and if the whole sense of we can

only move forward by building veazey leverett and rigid institutions is the only way to protect your interest it will be very difficult to get the function of at the heart what is needed is for the political among the constituent nations of bosnia and on the political leaders and the likes of that they can reach a political understanding. if they recognize people want to exploit the other because they might lose the next election and be on the other side and the difficult political culture that allows them to look forward one of the issues will be easier to deal with that without some political notice and working together of you're going to keep returning these technical legal solutions which make it difficult to move forward spin it we are talking about the multilayers of security and the several armies and several

immigrations and as we see in the streamlined, but there are a lot of different players. the only person that is a really hard time trying to figure out who is in charge, what linus what, does that need to be simplified as the years go on in the future? >> the word response of the lies, partially it is dealing with the problems of checks and balances. in the united states we understand the constitutional value of the checks and balances between the legislative and executive and the judicial branches. but you have a separate set of balances among the constituent elements, and the combination of the to fix it very difficult to make these very practical decisions which can benefit of your body and again, i don't want to overstress the problems as said we have made some progress in these areas but their needs to be an approach to confidence building that doesn't depend on the institutions.

>> confidence building reporting now for 14 years. what actually would it take to you think to get at the heart of what seems to be a bit of a paralyzing situation? >> i would love to hear my colleagues talk about that because they are the ones in the front. >> what would it take because it is a little bit too much, isn't it? >> it is complicated to read it works somehow, but some things should be removed. >> like what? give me an example. >> they have their own constitution so there is 100 ministers, 180 bosnia ministers. >> what about the big government? >> a bit of confusion. but it was her lover when forward now we have to simplify the system to have the old mechanisms and such things would

say some so-called which would reduce possibilities to stop the law, and then we've finally to accept one. they still send the messages and have to understand it finally there is bosnia and the future is there. we have to improve it and accelerate towards the european union and those in nato and to do things in this moment because -- >> that's what i was going to get to next. how big of a challenge is the economy and the joblessness in croatia right now? what do you think can be done to improve that? >> we have economic problems not

probably sue diaz, but we have to develop our international cooperation, and cooperation between the neighboring countries. it's very important because yugoslavia has different markets and enterprises having good results not only in europe and africa, asia and after the selection of the former yugoslavia we lost good markets and every single country is not always capable to go back to those markets, and our complementary economy can do this and now it's time to think globally about common market's and also to have some common efforts to conquer different markets in asia and africa and even in europe as well.

so difficult operation. it is really challenged an opportunity and now every day i have phone calls or messages were e-mails from different people from the economy from croatia asking to go and make relations with bosnia and serbia better. it's very important and i think it is acceptable for all countries. >> how good or your relations in terms of economy? and can you make them better now? [laughter] >> yes we can. [laughter] [applause] >> i would say in front of us to normalize and ann ngo the

three-way of buildings, first is the building of trust, reconciliation, and mine who gratitude because of the balkans it is easier to follow the same mantra. devotee is guilty but your side. the president is to confess to accuse some cubans the new dimension and then it produces better atmosphere and in the richest businessmen coming into the region, cooperations with in the region and then building of institutions in accordance we this is the second thing that should be built and finally, building the infrastructure. we cannot become a member of the european union, they must build it and it is constructive

industry and to engage all of those enterprises without such infrastructure you cannot develop, that is my opinion. >> [inaudible] organized by america and i am also inviting the prime ministers of each country and that shows our markets are too small important investors and the interest for this conference is very high, and i hope president clinton will also join us because he is one of the people that in spite of us to this type of conference.

also i have to say what was said by the president about infrastructure is very important. infrastructure is interconnected to croatia and connects croatia, serbia, boston, and is also very important, so all of this region can be motivated economically by building an infrastructure not only highway but other sorts of communication. >> if i could ask jim and lady ashton what is it then -- look, croatia has fantastic tourism, so does montenegro and what is it that this sort of holding back that investment into this part of the world? >> welcome you got a number of

-- [inaudible] [laughter] >> the biggest thing you have to have, which we have seen in croatia and we have seen in other countries and we will see more of his political will. for business to invest you need political will combined with the rule of law in the sense that there is certainty for investment, and that is true anywhere for the united states to parts of the european union to anywhere. it will go where there is opportunity but it's not going to put down rooms if it doesn't have the certainty of a market, the certainty that there is a good investment opportunity, and knowing that the rule of law will be there to support it if things get difficult, and that is why everything that europe does, what we focus on and why we think this is so important,

but you have to have above everything the political will to make the changes that will take you to the point that you can get the investment. >> i completely agree with that and one of the things important in achieving it is the national efforts which are extremely important in strengthening the prosecutors courts is the cooperation within the region, and one of the things that is important that is happening is when i start to see the corporation to the interior ministers are meeting among all of the countries of the western balkans, the police authorities are meeting because these, the syndicates, corruption are too big for most of the small countries that have limited capacity themselves. so here's the case where the seven regional cooperation with the support of the united states and the e.u. can make a huge difference and here is a place where i think especially croatia and the need to have shown the leadership of bringing others to get rid of convening ministers and working level people, judges, prosecutors, try to get ahold of this, because the weaker states, kosovo,

montenegro, particularly are in this and can all use the support of the countries that are further along the road than the president izetbegovic has been talking about. >> if i may, very recently we had the opinion that criminals are cooperating by the states. [laughter] and now it's completely different. we have special agreements among countries in the region, how to prosecute organized crime especially rafiq and those are good that prosecuting war crimes. it is a medical after all this history, and i think the rule of law is being involved more and more on the same level. >> can i ask from your point of view how successful these countries are being in terms of

not being mafia or organized-crime economy. >> i think they are doing extremely well in not just the problem they have, it is a problem that countries face across the european union and across the world. the critical thing that i think we would look to is the collaboration that's now enabling some of the best policing and knowledge and efforts to tackle organized crime, drug trafficking and salon is being used across the region. i'm not sharing the information that as of supply critical to looking at where the gangs are and how they operate. the operate like a business, often and are successful to be a will to smash that you need to have that sharing of information. flecha special investor and i think it is a tribute to the work going on in the region. >> possibly one of the most pressing problems are not old as unemployment. you see it in the united states and even greater in other countries around the world.

how bad is the situation in europe, and particularly, how does the former yugoslavian republic contribute to unemployment? >> i hate to say the country continues to beat contributes to unemployment, i think we've got in these very challenging times, and i don't have to tell this audience about them, but you know that the economic situation can be very tough. the strength of the year rose own is beginning to show and the capacity of europe to find its way through by sticking together and being very clear and firm about that collaboration and the economic growth is beginning to show the work of the european commission and so on. it's a real sense of movement now beginning to be really part of a european union progress but it's not easy. and i think for the countries who don't have the stability built in to their economy and don't have any sense the

capacity to be able to use the resources they will be laid down is much tougher. the new were member states one tiny example is the economy of romania plus 7% three years ago to - 7% in 15 months. huge debate on the agriculture. real problem for them to grapple with and they didn't have the long-term underpining with some of the old member states did. so it was different in different parts of europe more broadly. and one of the reasons it is essential to try to climb out of this year p.m. union future is that we have more tools and instruments available to help and help countries survive living forward and develop their economy. >> jim, when you say the speed at which croatia, bosnia are going is what we should expect? is it slower than it should be expected in the conflict really?

is faster, is about normal? >> i don't know what normal is that we would like to see especially in bosnia for the effort to go faster. we haven't seen the kind of progress we want. the direction is the right one, but it's not going at the speed that we would allow and assure the people of bosnia that they will be able to be in the same ranks as croatia for a simple. .. that we can be satisfied with the progress and that is why we are there so often and that is why we are so engaged is because we feel a sense of shared

destiny with the people there and we want more for it. >> you did want to point fingers and i do want to put you on the spot, but i might. what would you ask him to do as a first thing to try to move this process forward along the lines you have been discussing? >> what we would ask is what we ask of all the leaders which is try to find a way to move forward together, understand each other's concerns but try to find a way in which, keep the interest of the people in bosnia and herzegovina in the forefront and think about the future. think about the fact that the compromise is always hard and you will always be criticized for those compromises but that trying to point out the benefits and leave, we heard the conversation earlier. the president said it is not about holding off. it is about leaving and the reason you hold off is the reason you are in office is not for yourself but for the people you are trying to serve and to keep that perspective in mind. we don't have a specific set of answers were specific things

that you must do this or you can do that. it is more to encourage the sense of common and shared destiny to come to the room, to be in the room together and to try to find a way when i walk out of the room with some kind of agreement rather than just retrenched into the position she came in with. >> and you talk about having to move forward along the lines jim is talking about. if you had to choose one thing that you think would be critical to move forward right now what would you do? >> what we need is of course better understanding, dialogue and --. >> how can that happen? we have said this several times. >> i told you, i am expecting the serb side politicians, finally accept unified bosnia and, in future. this is something that is out of my control.

i am doing my best sending messages. i am doing my best, but it is up to them. i am here today, but my chief of the cabinet is in berlin asking to come on a business form because last year we had the business form on the sixth of april. i would like now to make it a regional one, two see people from croatia, from serbia, from russia and the usa. we are going on the fourth of april two sarajevo on the sixth of april. we have to protect investors from slow administration. they are too slow. we have to protect them from organized crime.

[inaudible] we succeeded to put them there, in their place. so it is not so sharp -- we have minerals and we have water. we can make electricity and all those things. >> can i go back to something jimmy mentioned at the beginning, the whole idea of nato and the european military commitment. the secretary-general of nato just spoke very strongly about europe's commitment and said europe needs to stop being naïve about how it needs to keep contributing militarily to areas and not just think you can do humanitarian work and leave the hard fighting to the united states. how big an issue is that for you

right now, for the u.s.? >> actually, i think christiane following the lisbon summit last december there is a strong sense of solidarity if and i give a lot of credit to our european partners because they don't have any illusions about where the european public is in the skepticism they have about this but there is a strong commitment a way forward together both in terms of the political and military strategy and i have to say our partners in the balkans have played a role. in bosnia which is offering troops for afghanistan. this is the kind of thing we look for in a partner and we have seen the countries of the western balkans showing that they have the will and the determination and the understanding that part of being a nato is to take the common mission and to share the burden and the responsibility for it. >> mr. rasmussen thought there was a problem, otherwise he wouldn't have made this rather harsh speech. what can europe do to contribute

more to the military situation whenever there is one rather than just think you can leave the warfighting and the hard military jobs to the united states and think that they can do just humanitarian development work? >> i don't think europe thinks that and i think he is a friend of mine is somebody i meet every month to talk about e.u. nato collaboration. i think he has a job of worrying about defense commitments. that is what he has to do and of course looking out the issues of finance across the european union. i understand why he wants to raise the concern. having said that, i don't think europe would see itself as being the kind of soft and of the spectrum and leaving the hard stuff just to the usa, far from it. what was really interesting that came out of the nato summit was the new strategic concept where a core part of that is this collaboration with the e.u. and nato which i am responsible for from the e.u. side and our commitment is to be working

side-by-side with nato on what often our problems and issues that need a full spectrum. if you take afghanistan, where individuals are there with troops, where the e.u. is there supporting david petraeus and his work and i see him regularly too, to support the training of police to do development work on the ground and so on and i've indicated the european union will be working in afghanistan or years and years to come. long after the military campaign there will be the continuous work. and the secretary clinton she and i met with the women of afghanistan when i was there to talk about their future too. so it is a collaboration. there is a collaboration across the full spectrum and whether the e.u. can benefit is also having that additional support to back up the military campaign but the other things you need to provide our real security for the people on the ground. >> and i just derided devil's

advocate question? given the fact that the united states, you know it obviously does a lot of terms of development but it is quite shy about doing that. compared to the warfighting. what would be wrong with the u.s. during the warfighting and leaving that grubby unsexy job of development and nation-building -- look nation-building is a dirty word so why not lead it to your? >> first, i don't agree on the first part because if you look at the financial commitments we have had. >> i acknowledge that. >> i think you have seen a real evolution in the united states even in the previous administration. nation-building was not capital anymore and i think we have come to recognize that this is fundamental, that rice is prevention and stabilization are the core what we do. if you read the so-called qddr, the quadrennial diplomacy and development review that secretary clinton has done, it

shines a dramatic commitment over the long-term for increasing our capacity and the preeminence we attach to development as well as diplomacy as part of the 3g defense development and diplomacy strategy that is our whole strategy. we unashamedly -- but similarly if we allow our day faith to be coupled and where american young men and women are dying in not sharing their word and where we have the common interest with the european allies it is over. that has been at the heart of what is hip salivary forever and i can think of nothing worse for transatlantic relations a trans-atlantic relations than to have them have a division of labor. >> so do you think, i mean i know you have thought it should be very strong but are you concerned that europe might visit the budget cuts, because of all that is going on there right now, contribute less than you would like?

>> we understand the fiscal realities that the ark being government. it is important people recognize it it is a shared commitment, that we can't have her free ride and we can't take advantage of this and i think it is right to discuss these issues. secretary yates discusses it with his colleagues. one of the things we have felt for some time and is whether we need to get finance ministers and it is conversation as well as defense ministers because what ends up happening is the defense ministries are great but we need to get a sense in which the whole of government -- so it is an issue and it is always going to be an issue where the is the kind of economic pressure and i think it is important to keep focused on this issue but i think we have seen even as the european governments grapple with this that that there is a sincere effort to try to find a way forward. we had a very good dialogue for sample with their colleagues in the u.k. about how they were thinking about reductions if they had to make them to make sure that they were thoughtful, that they didn't undermine the

alliance commitments in the complemented what others were doing. there are ways the countries can work together as we have seen between britain and france, better corporation and thinking about ways to duplicate. we have to not lose sight of the common obligations. >> do you want to? >> one comment. one of the many jobs i had this to chair the defense minister as well as the development ministers and i think it is really important that one of the effects of the thing called the lisbon treaty which created my job is the opportunity to collaborate better in europe on defense issues and that has led to some bilateral agreements like the u.k. france initiative, but also a much broader initiative about how do we use resources in a smarter way? there is no question it is not just about looking at the money. it is actually saying what is it that we ask you want to do? what do we think our role should be and how do we do that? all of those conversations go on

trans-atlantic way because it is so important to get that right. >> we are turned participating but it is important to say that nato is not only military. is a political organization and its political goals are accessible -- acceptable than military participation will be participating in afghanistan. now there is organization of neighboring countries of common forces to participate in afghanistan. that is very important because it is at the same time participating in nato goals and in our region of goals as well so native is very and -- nato is very important and we are going to support the membership of professor gobain bovina as much as possible. >> we have one minute left in

our time. i give you the final four. you tell me how we want to wrap up what we just said today. when do you hope to be in the e. u.? >> i hope in this decade. i hope they will make a taylor made programmed for us, something that they can account specifically into specific circumstance in herzegovina. bosnia has to prove that the nations in the regions can work together. it is not only because -- important because of us. this is my message. >> alright. ladies and gentlemen thank you very much for joining us and one moment. [applause] president clinton is going to come up and wrap up this wonderful couple of panels.

[applause] >> thank you. >> ladies and gentlemen first of all i think we should give our panelists and other hand. i think they were great. [applause] i want to make one point sort of coming-out of the theme that was, this panel began with and that the other panel ended with. i actually do believe that the agreement that we made at dayton and how we came to it, including the eventual use of military force briefly in bosnia sort of

set a template for how we would deal with other challenges and crises and opportunities throughout the administration's eight years. and i think the interplay of conflict in the region really is a microcosm of what was going on in the world in the 1990s and continues today. basically, the world grows ever more interdependent and ways that are both positive and negative. if you look around this room today, i saw students i'll bet during the break from 30 different countries, most of whom have never been to bosnia. most of whose parents, unless they had university degrees and a relevant subject would not have been able to find the

balkans on a map. it is a metaphor for the positive aspects of the interdependent world. the fact that we know and feel some identity with all those people asking for personal and political liberty in industries in egypt is a metaphor for that. i think it is also quite obvious what the negative implications of the interdependent world are, and i thought, from the beginning, that the post cold war world would be in a constant race between those who are trying to build the positives and reduce the negatives, and those on the other side are going that we had to find a way to work together that would bring about a shared benefit, shared responsibilities and a shared sense of community. we did the best we could at

dayton but i think you heard them in the beginning here. the principle defect of the dayton accords is that it sought to protect the legitimate, distinct interest of the various ethnic groups and their accumulated and understandable fears by giving them all veto power over each other. and i think we got better at that as we went along. compared dayton for example to the irish peace agreement. where the parties themselves head, have come a very long way before. keep in mind these people made this piece. they quit killing each other and boom they were immediately asked to make an agreement. there was no kind of letdown, readjustment time. in the irish case where they'd been carrying on for 30 years,

the people got out ahead of the politicians and they told him to stop. and the politicians decided to stop and they created instead of a negative sense of shared authority, a positive one. that is instead of giving each other veto power over the other, they created an agreement of majority rule, minority rights, shared political decision-making, shared economic methods and a shared relation with both their near neighbors if you will, the united kingdom which the northern fell apart and the irish republic. so what we all need to do is to try to help them overcome the sort of tilton built-in veto bias that's president izetbegovic talked about and you see they are doing quite a good job on their own, but they

are -- and the rest of us have to help. i see this all the time and other places. there other places in the world where the political system has a bias in favor of stopping rather than empowering people to share the future together. i mean, i saw one more poll this last week in israel showing that 65% of the israelis including over 60% of the members of the likud party would support a peace agreement which had a palestinian state on the west bank land swap to take account of the israeli settlements, and international oversight of the holy sites in the old city of jerusalem. basically what we all know what would have to be but the way the political system works right reasons having nothing to do

this is hard to produce a government that reflects that 65%. so you see this all around the world. interestingly enough, the country that has gone the furthest to try to stop anything like this from happening now is harshly criticized last year during its election season for doing so, rwanda. rwanda, where there was actually a conclusive military action by the now president, who then had a dominant role in setting up a new constitution and a new system, because he was in the minority ethnic group, the twosies who were the principle victims of the rwandan genocide, he intelligently refused to be the first president of post-genocide rwanda. he said a hutu should do it and he has since been in for 14 years. but they are so allergic to what they went through, they're

bosnia, their kosovo, that it is illegal to run for office on ethnic issues and to even talk about the distinct claims of people based on their ethnic backgrounds and indeed one lady came home and was subject to arrest and not allowed to run for president because she wanted to run on a platform that said that the hutu majority also have some legitimate ethnically defined grievances. now, khubani is popular there in part because once they got off of their common future, they went from a per capita income of $268 in 1998 to about $1100 in 2010, quadruple their income. so the larger principle is unexceptional and that is why these two presidents talked about all the positive things they talked about.

but surely there has to be a way in places where either nobody is prepared to do what rwanda has done or where people want to be able to recognize both their separateness and their participation in the larger community. it is interesting because there were wanted and still acknowledge their history. they have a gripping holocaust museum and they talk about it. they just say they have made it impossible to repeat it. maybe they have and maybe they haven't, but my instinct is that what the irish try to do or even what the lebanese try to do which i think would work if everybody else would leave them alone, but lebanon has a very complicated religious ethnic cultural landscape in which the sunni muslims get the prime minister ship and the shia is the speaker of the house and

then a christian is the president and they allocate this and that is the way they share power but they have tried to create a system in which it is in your interest to get something done instead of your interest to veto. we need to try to help that happen in the balkans either in law or in fact. the second i would like to make is that we spend all our time here talking about what governments can do, and i think that is important. but i also think that i should take some bow to my current wife is an ngo. i think one of the most important things we can do particularly in the european context is to try to help build civil society and build non-governmental contacts that will create the context in which leaders like these two cam in which a serbian president can

take a lead in trying to promote reconciliation in which a bosnian could survive politically doing the decent thing and saying let's figure out how to share the future together. and so, i wanted to say that i think that at least for me, we wanted to try to do more to help civil society. somebody else in my family has all the influence and power now. [laughter] so as a lot of you know i have this -- that meets at the opening of the u.n. every year and we have had now about $63 billion worth of commitments in the last six years. we have our first 2011 commitment. our nation's largest youth service community service organization, a big affiliate of americorps with the support from the rockefeller brothers

fund has agreed to host the delegation of immunity, civic and youth leaders from bosnia and connect them with counterparts in the united states to share models and approaches for doing citizen service, engaging citizenry, supporting political reforms and economic advancement and they are coming here to do that. i think that is really important. i think we have to help build a supportive civil society for doing positive things. because one of the things that i have learned and i see it happen in america over and over again, if you organize the politics in a way, even if the people don't feel that way all the research shows that the people in bosnia, the people in croatia, the people in serbia think that their past ethnic fights are of almost no importance compared to their sense of having to create

a broad economic future, a bright economic future for their children to build the kind of modern future representative of the young people. so i'm going to do what i can to help them with this city project and i urge all of you to think about what you can do. finally let me just say on the discussion that kathy and jim are were having about the role of the united states brand what christiane said. we have the biggest consensus we have ever had within the american government for raising the role of soft power diplomacy development across the whole government. it is recognized as important to our national security by bob gates who has been wonderful. the only experience i could remember his defense secretary consistently advocating for a bigger development budget for

the state department. because he believes it. we have seen in president obama's administration the economic agencies all recognizing that this is central to america's ability to increase exports and increase their economic standing in the world, to do this kind of investment. and we have made almost no progress in congress, and in fact the last election signaled a big movie of the way. madeleine albright and sandy and i were just talking about how we are worried about how to pressure the development budget we have. why is that? that again is an irony of democratic politics. if you took a poll and you asked the american people, it hasn't changed in 30 years, how much of our budget we should spend on development assistance, they would save between three and 5%, no more. how much do you think we have

spent? oh 10 or 15%, to much. what is the fact? we have spent 1% or less. no matter how many times we say it, it doesn't register and so even though every member of the united states congress knows that they can safely vote for a good for an assistant budget, they also know that they will never be defeated for voting against one. so, for all of you who are americans i ask you to think about that. when you want to sustain the effort in afghanistan, i agree with much of what peter galbraith said about her needing a partner but we have to prove our good faith that we are not just interested in doing what happened to them in the 1980s when we were only too happy to dance with them until the soviet union left and then we left. the only way in you can stay after a war is over is to help

people build a better future for their kids. and there is almost no support now. you can say all you want to about the current economic climate. the whole discretionary spending budget of government is only 15% of the total. all the cost driving deficits are in health care and defense. mostly just in health care, and we should not do this. we should not back away from our responsibilities to bosnia, to croatia, to the balkans, to the future, but we need your help, all of you and saying that to the members of congress and making sure that the american people know that we don't spend nearly as much as they think. they actually have it exactly right. we should spend about 3% of our budget instead of the 1% we do spend. but they think we spend tens so we are post-consistently on this. [laughter] the final thing i want to say is

this. the balkans are both hopeful and cautionary tale of the modern world. everyone needs a sense of identity. we need to be able to define ourselves in boxes which enable us to feel tangible and to draw distinctions. man, woman, white, black, african-american, asian, old, young. [laughter] student-teacher. our whole minds work to categorize a blurred reality into categories. and then humanities repeatedly gets in trouble when the categories become more important than the underlying humanity. all this genome research shows we are not 9.5% the same.

and the balkans for a searing experience for me because here were people who are biologically indistinguishable who were of different religious faiths and cultural traditions because of an accident of history where the ottoman empire stopped, where the holy roman empire stopped, where the slavic empire stopped and all of a sudden that was all that matter. mattered. it mattered so much that people could kill each other and have no regard for whether their children lived or died. and so, i think that is at the root of all the problems everywhere else that lead to violence. many years ago i read a book and it was a few years ago by robert wright who is most famous for having written the moral animal

which is about our impulses to be ethical in relation to one another. i think he wrote a book called nonzero and that is a phrase from game theory. a nun zero-sum game is where he can win without someone else losing. we americans love zero-sum games. that is the super bowl. or the basketball where we make them play seven, eight, 10, 12 overtimes. there has has to be a loser in order for there to be a winner. it is nice for sports but in the world we are living in we need more nonzero sum games and the truth is that the reason we admire what these two presidents said is whether we were conscious of it or not is they have had enough life experience and they have seen enough people died and they have learned enough that they believe they can share the future and the only way they can win is if it

is a nun zero-sum game. that is a test that will face a ban sudan as they deal with the aftermath of the election. it is the test that faces people everywhere. so when a larger sense i think the balkans will always be relevant in dayton will always be relevant because it was the post-cold war world's first brave effort to prove that we can live in an environment in which we can all win. i still hope we make it and i still think we have to prove it. thank you very much. [applause] >> the commission on wartime contracting concluded last week with tens of billions of dollars have been misspent in iraq and

afghanistan. today's hearing on that report is next on c-span2. then attribute to the late senator ted kennedy and after that, a supreme court case bond versus the united states which involves a woman convicted under federal antiterrorism statutes. >> the united states is spent $177 billion on private contractors in iraq and afghanistan. according to the commission on wartime contracting. the panel met earlier to examine how government agencies rate the performance of contractors and

how they and contracts with companies that commit fraud. this panel is two hours. >> i'm christopher shays cochairman of the commission on wartime contracting in iraq and afghanistan. this opening statement was made on behalf of cochairman michael thibault our fellow commissioners and myself. the other commissioners at the dais or grant green, robert henke, charles tiefer and doug zakheim. commissioners catherine schinasi and clarke kent ervin could not be with us today. today's hearing is about holding people accountable for their actions, both good and bad. for the 200,000 people employed by contractors to provide support and capability and effort -- afghanistan accountability is too often absent, deluded, delayed or even avoided. the federal government had some powerful tools for holding contractors accountable for what

they are obligated to do. these tools include the ones we are discussing today. information on contractors past performance and the processes to suspend or debar irresponsible firms from contracting with the government. our concerns are that past performance data is often not being properly recorded or explained and that barriers exist to the effective use of suspension and debarment. these concerns -- those concerns may sound like bureaucratic quibble but they are very important. if past performance information isn't recorded in the federal database, then there is no shared official record to consider in awarding new contracts and the suspensions and debarment are impeded by bureaucratic decisions or inertia and companies who have committed fraud may continue receiving taxpayer funds. in eitheru case, untrustworthy contractors can continuetrustwoy

profiting from government work, responsible businesses may be denied opportunities and cost the taxpayers -- to appreciate her concern, consider these points. samplings of contingency contract data in the federal procurement data system suggest that more than 90%, not 9%, more than 90% of no contracts have nt had required past performance data entered. the office of federal. procurement policy found that more than 75% of past performance reports that were made still lack adequate narrative on contractors cost control efforts. according to the project on government oversight from 2007 through 2009, more than 200 department of defensese contractors would incur judgments or make settlements for fraudtr charges were awarded $280 billion in dod contracts.

the commission has discussed his concernsracts and our second inh report to congress released laso thursday. las that report titled, at what cost directing over reliance on contractors and contingency operations contingency operation, contains 32 what we consider recommendations for legislative and policy reforms to improve contingency contracting now and in the future. we encourage you to examine the report which is posted on the website wartimecontracting.gov. in the at risk report contains six recommendations on today's hearing. they are numbers 20-25 in our report, recommendation 20, about contractors to respond to but not appeal agency performance assessment. recommendation 21, a line past performance assessments with time contractor proposals.

recommendation 22, require agencies to certify used of the past performance database. recommendation 23, require a written rationale for not pursuing a proposed suspension or debarment. recommendation 24, increase use of suspensions and trans. and, finally, recommendation 25, revise regulations to lower procurement barriers contingency suspensions and debarments. these recommendations discussed more fully in our report are intended to pressure the past performance data are entered and used. and that suspension debarment that take place more effectively, that they take place more effectively, and that suspensions are applied automatically if a government contractor is indicted for procurement related crime. these are important matters. tools are no good if they are

not used to and behaviors will not change if consequences never appear. today's hearing will add to our stock of information on these matters, which will continue -- which we will continue to receive commission of tension as we work toward our final report to congress in july. we have two panels of well-informed witnesses to help us. and the one has four witnesses. rear usaid captain timothy harrington, u.s. navy commanding officer, naval sea logistics center, and scott amey, general counsel for project on government oversight. panel to have six witnesses. dan gordon, administrator, office of federal procurement

policy, deputy director of contingency contract and acquisition policy defense procurement and acquisition policy, department of defense, cori, procurement executive department of state, maureen shauket, chief acquisition officer u.s. agency for international development. and blalock, u.s. navy council and chairman, and chair, internet, enter agency suspension and debarment committee. and uldric fiore, director office of the judge advocate general, u.s. army. we have asked our witnesses to offer five minutes summaries other testimony. the full text of the written statements will be entered into the hearing record and posted on the commission's website. we also ask that witnesses provide within 15 business days responses to any questions for the record, and any additional information they may offer to

provide. on behalf of the commission, we thank all of our witnesses today for participating what we believe will be a very important hearing their so now, if i could i would ask you to rise and we will swear you in as we do all our witnesses. raising the right hands, do solemnly swear or affirm that the testimony will give before this commission will be the truth, the whole truth and nothing but the truth? know for the record all of our witnesses have responded in the affirmative. and let me just thank you for your service, for our country, both in the public and private sector. thank you, gentlemen. admiral, we will start with you. >> thank you, sir. good morning, chairman thibault, chairman shays and commissioners. my name is where admiral robert gilbeau and i'm the commander of international director for the defense contract management agency, or dcma. thank you for the opportunity to participate in today's hearings regarding contractor has performance and the suspension and debarment process. i'm would like to say that i

think accountability is very important and i take it to heart as a navy supply corps officer. in our contract administration role, the dcma conducts reviews, cost of liability determinations and past performance information for field level contract operations to activities such as the u.s. central command joint theater contracting command, and the army contracting command at rock island. we also provide comprehensive contract administration services for the army's logistics civil augmentation program, or logcap, and air force contract augmentation program, or ascap. as was other delicate contracts throughout a contingency a program offices and procure contracting offices, or pcl's interchanges are input to assess contractor performs and make a determination. if requested by the procuring contracting officer, our dcma contingency is the most, contract managing offices can

input data into the do the contracting performance assessment reporting system, and a joint contingency contracting system or the jcc has. our inputs rely on cost performance reports, customer comments, quality audit examinations, or process reviews, technical interchange meetings, production management reviews, contract operations reviews, and functional performance evaluations. it is used for us-based contractors were as jcc has issues for non-us contractors? >> when requested we uploaded these are going to pcl input requirements, typically every 12 months for contracts with performs in excess of one year, and at the end of every contract. dcma afghanistan inputting data into c. par four large -- logcap iv. contingency cmo is also provided by monthly performance evaluation port reports based on monthly audits, focusing on

toward the evaluation criteria, technical costs and management. for the logcap iii contract and a logcap iv contract in afghanistan and kuwait. these oddities inputs from dcma quality assurance represent as an appointed contracting officer representatives. ecma corrective action requests, administered contracting officers, customers, usually the camp of mayors, and the contractors of self-assessment. the tvs are compiled into an award field evaluation board every six months and embraced to the theater logcap pm representative. ecma also provides a weekly report on cars issued for the previous 90 days to the logcap program office and we participate in quarterly logcap where we breathe the program office and pco on performance trends for the preceding 90 days. d.c. images and provide support to the pc owes at the contractor corporate level for logcap, on matters such as contractocontractor system reduce, cost a liability determinations and past

performance information. they also provide pc owes with past performance data associate with the contractors centralized systems such as current business systems, financial capability, and summarize or targeted information. in regards to suspension and the debarment, art mission is contracted ministers. as such a function to hit by the suspension debarment officer. the we provide information to the military services and defense agencies that may support suspension and/or debarment proceeded having said that, dcma employers are required to report any instance of possible fraud or other irregular he by a contractor. dcma employers are provided fraud awareness training, and the dcma legal team works with our contracting staff, dod criminal investigators, federal prosecutors and contracting office is supporting appropriate judicial or administrative sanctions against contractors.

in closing, i would like the commission to know that dcma understands the value of contractor past performance and the rule of suspension and debarment and takes as its mission in the context. we remain committed to our warfightewar fighters, sewing employees, contractors and the american taxpayer to provide quality products and services delivered at a fair and reasonable price where and when they are needed. i welcome your questions. >> thank you, admiral. mr. carroll. >> good morning. co-chairman shays, chairman thibault, distinguished numbers of the panel, commission, thank you very much for the opportunity to appear today to discuss our views and opinions on the current state of u.s. 80 suspension and debarment program. i think the best way to do that is go back to the audit in 2009 on the agency suspension and debarment pro ram, a process and that audit covered the five year period of 2003-2007.

and if i could summarize the findings and basically four major ones, the first found the agency didn't have a systematic process for considering suspension and debarment actions but they didn't have a dedicated staff. it was rather ad hoc process. documentation when they did take procurement, suspension and debarment actions, the process was a good -- a bit ad hoc estrus document the process. and the use of the contractor performance database was marginally effective, both in inputting timely and accurate data, and also extracting data when making procurement decisions for the future. and so you wouldn't be surprised that based on those findings between 2003-2007, the agency only took, i say only, that's our point of view, only took 17 suspension and debarment actions over that five figure. that was then, and this is now.

the audit made 12 recommendations to improve the process. we reached management decision and final action on all 12. and i'm happy to say that the agency really has embraced the audit as a way to move forward and improve the process. and to demonstrate that, just quantitatively, from 2008, post audit through today, currently, they have taken 37, so more than double the amount they took in the five years, they have taken in the last two years basically, and that of those 37, within the last year they have taken 28 suspension and debarment actions. so i think that really reflects a renewed commitment and interest in contractor accountability. so i think we give the agency credit for that. in reference to what they have done to address our recommendations, i think one of

the major steps they have taken is to create what they call the compliance in oversight of partner performance division within all in a, the office of acquisition and assistance. it's going to dedicated solely to considering contractor accountability and suspension, debarment actions i think that's a major step the agency has taken. the processes are improving dramatically. they are supported very well by the office of general counsel within a.i.d., and we've even changed our philosophy in the way we operate. we share information, investigative findings much more quickly, in real-time so the agency can make informed decisions if they need to prior to any kind of referral for prosecution to the department of justice. and i think, you may of heard in speeches that the administrator has given that there is a renewed emphasis on contractor

accountability. and i'd like to just give one example, if i could in the time i have left, of a successfully that we feel is a success story. the agency feels is a success story that maybe we'll be talking later on. that's a recent suspension of the academy for educational development, aed. we opened the case on them in pakistan, in late 2009, based on evidence we had on the case, the contracting officer in pakistan cancel the contract for cause based on our evidence locally in afghanistan and pakistan. and then when we expanded the investigation to include the corporate entity, we found enough there and we're sharing this all with the agency, and they moved to suspend aed. now, that decision has major implications for the agency. they are huge implement partner in both afghanistan and pakistan.

and around the world. so for the agency to take that step was huge, but we felt like the evidence, the evidence supported that decision and they took that decision. so i would consider that sort of an example of how the agency has moved forward from the audit carried that we looked at in early 2002 where we are today. now, to conclude, i work in oig, we're entirely skeptical, but at least somewhat we have seen and the steps that the agency has taken post our audit, we are relatively confident that they're moving in the right direction. that concludes my remarks and i would be happy to ask -- answer any question. >> captain harrington? >> good morning. chairman thibault, chairman shays and dissing which limits of the commission, i'm captain tim harrington, the commanding officer of the naval sea logistics center. i want to thank you for the opportunity to speak about contractor past performance, information systems and

specifically the contractor performed assessment reporting system. the past performance information retrieval system and the federal integrity information system. under my command stewardship, both cpars and peepers have migrated from being and navy and duty solution and repository solution to being a solution is currently by all federal agencies. my command is responsible for manus and availability enhancements and updates, help desk support, and user training. while my command is trusted with their management, we are not responsible for past performance policy, nor do we enforce compliance with use of these systems. like avril, my employees take what they do very seriously and are dedicated to its management. having served on board five ships and twice been stationed

overseas, i'd have appreciative of the work the commission is doing to support our mission overseas. and my fellow service members in peter. mr. co-chairman, i am honored to be here to thank you for interest and i can take any questions. spent thank you, captain harrington. we appreciate that. >> i want to thank the commission for asking the project on government oversight to testify about the issues of contractor accountability and how past performance information and to suspension and debarment system can be used and continues see operation of the government has estimated that $177 billion has been spent on contracts and grants to support u.s. operations in afghanistan and iraq since 2001. according to the search of you is a spinning there were nearly 50,000 contract transactions for $21 billion in fiscal year 2010. i cannot overstate how important

contractor accountability issues are in a line together to operate and accomplish its mission is important to remember that contractor account of irresponsibility are not isolated. they usher between acquisition contract, program, oversight, and enforcement officers and inside agencies, a.i.d.'s and the department of justice. federal contracting law state that contracts are only supposed to be awarded to responsible contractor, no purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. and contractor shall have, shall have a satisfactory performance record and a satisfactory record of integrity in business ethics. in an effort to place a spotlight on contractor accountability issues, pogo created a database in 2002. we have over 1000 civil, criminal and administrative people involving the 150 top contractors. the instances cited have

resulted in $38.2 billion in fines, pills, so and restitution state since 1999. those include allegations of fraud, bribery, overcharging, poor performance and contracts terminated for default or cause. the lack of contractor accountabaccountability data was the subject of virginia report of the department of defense entire report to congress on contracting fraud, which examined the extent to which the pentagon awarded contracts to countries that have defrauded the government. the report found from 2007-2009, dod awarded almost $270 billion in contracts to 91 contractors that were found liable in fraud cases, $682 million to 30 contractors convicted of criminal fraud. it also then companies prohibited from federal contracts continue to receive millions in taxpayer dollars. that said, i think that the system is likely to improve in the near future. laster the government unveiled a

federal a warty performance and integrity information system -- it is modeled after pogo database. it compiles annual set of information that helps government officials determine if contractors or grantees are responsible or risky. up until that point, that information wasn't readily in the hands of contracting officers pre-award. today you might hear about, i would counter with names like gtsi, actually, blackwater, are also known, formally known as blackwater. dyncorp, halliburton and kbr dignity of those companies are familiar contractors to the commission, and three of them hold all or a piece of logcap iii and logcap iv. the government inability to hold contractors accountable begs the question, is the government so reliant on large contractors that the actors are necessary evil?

the answer to some contractor accountability questions were supposed to be answered by the interagency suspension and debarment committed pursuant to law it is required to submit the contract and annual report on the progress of the suspension and debarment system despite multiple requests to the i is here, william blalock in 2010. pogo hasn't seen any annual report or received a reply from the isd sea as to its status. this is actually troubling considering the sharp decline in suspension and debarment through the years. and a congressional inquiry into doj possible interferes in to suspension debarment proceedings. even when it has been used to the years, it hasn't been used very effectively, especially against large contractors. boeing received three waivers when it was suspended. we've also seen ibm and gtsi suspend for a matter of days. world, suspension was lifted only days prior to the next long

distance documentations contract. and was also seen other questionable contracts and activities, in order to promote competition. and i think that's what you probably most likely here in a a lot of your q&a with his band and with the second panel come is there's a problem with the reliance on contractors and, therefore, it gives us 10 and, are you eliminating effective competition? that's a real problem. but the real, i think for this is the fact that the government is not providing and accountability agenda in normal government operations and, therefore, how will they do in a contingency operation when time and mission of congressmen are critical. i thank you for inviting me to testify today, and i look forward to working with the commission to further explore how the government can hold contractors accountable. thank you. >> thank you, mr. amey, and thank all of you for your testimony and for staying within the five minute rule. i appreciate that, and we're going to have questions.

we each have eight minutes and it will be first co-chair mr. thibault. >> thank you, mr. co-chairman. thank you, gentlemen for being up there. i have to thank the audience because sitting here thinking about this, when you say fapiis, cpars and all that, and it's a whole new world that it continues. >> it's kind of scary to some people are nodding their heads. >> yet. they're being polite maybe. before i start, the restaurant my questions i want to acknowledge a couple of things. admiral gilbeau, thank you for being here. i thank all of you, but whenever i have acquisition executive with a purple heart, you know, in simple sense it means spilled blood answers to the country. i thank you for that but i think the point to be madi