shut down. i've been reading this for weeks, and i chuckle. you heard me say at this podium for months going back to last fall that the goal is not to shut down the government, but to cut spending. we listen to the american people. they want us to cut spending. that's what we're going to do. >> in the next two weeks are you going to sit down with vice president biden and the senate and work this thing in >> all of us want to fund the government through september 30th. our team wants to cut spending in a real way, and it's time to get to work, and if you give congress four weeks, guess what? they'll take four weeks. give them six weeks, they'll take six weeks. we have two weeks. let's get the job done. >> mr. speaker?

[inaudible conversations] [inaudible conversations] >> the supreme court ruled 8-1 today that the 1st amendment protects church members who mount antigay protests outside military funerals. we've the oral argument in just a few minutes. as the gadhafi forces continue to rebel, he gave a speech. there's security challenged around the world and was asked about colonel gadhafi. that comes later. >> i want to take a brief moment

just a say a few words about a tragic event that took place earlier today in frankfort, germany. i'm saddened and outraged of this attack that took the lives of two americans and injured two others. i think the american people are united in expressing our gratitude for the service of those who were lost. michelle and i have their family and their friends in our thoughts and prayers, and we are praying for a speedy recovery for those who were injured. i want everybody to understand that we will spare no effort in learning how this outrageous act took place, and we're working with germman authorities to ensure that all the perpetrators are brought to justice. we don't have all the information yet, and you will be fully briefed as we get the information, but this is a stark reminder that the extraordinary sacrifices our men and women in uniform make all around the

world and the dangers they face all around the world. it's fair on behalf of the american people, we want to send our con thoughts to the families. >> [inaudible] >> i will have a chance to take questions tomorrow. the president from mexico will be here, and i'll give you a chance to ask questions on these sensitive topics. >> marc sureman is with the associated press and how did the supreme court rule on a case involving protests? >> they ruled that the protests were protected by the 1st amendment. >> who is the plaintiff in this case? on the phone: the plaintiff is albert snyder who sued a church in kansas because the church member showed up outside his

son's funeral, a marine who died in 2006, and the church members as they have showed up outside his sewn's funeral why very provocative signs that said thank god for dead soldiers and 9/11 and things like that. .. and a jury basically found that the picketing had caused

potential infliction of emotional pain. that judgment was appealed and the federal appeals court in richmond virginia thread out saying that the constitution wouldn't permit it, and mr. snyder appealed that ruling to the supreme court which today affirmed what the federal appeals court said. speier stories as chief justice john roberts describe the cold cold -- courts hearing is narrow. does is open door for others who may wish to take up this kind of protesting? >> well i think he made clear that when the topic of the protest is a matter of public concern, in other words not exclusively a personal attack on a private individual, that when the protest itself is a topic of the matter of public concern, it is pretty well protected by the first amendment. >> you said the ruling in the case was 8-1. who gave the dissenting vote? >> justice samuel alito was the only dissenter, and he thought

that attacks on the snyder's were beyond the pale. alito said that the country has a profound national commitment to free and open debate but he said that is not a license for the vicious verbal assault that occurred in this case. >> has there have been reaction from either party involved in the case as to what the court decided? >> well i have not yet heard from mr. snyder or his lawyers but margie phelps, who was the daughter of a minister of the church and who also is a lawyer who argued the case at the court, she said the outcome was expected. she said the only surprise was alito's dissent and she said that the only way for a different ruling would have been to have shredded the first amendment. >> could people see this as the court sanctioning the message of the westboro baptist church? >> while that is certainly not what the court said it was

doing. it said that, what it was doing, the chief justice said that sometimes even hurtful speech has to be protected because if not, it risks stifling public debate on public issues. >> mark fuhrman is with the "associated press." thanks for joining us today. >> you are quite welcome. >> now we hear is the supreme court oral argument from october. the court ruled today the westboro baptist church has the right to hold protests near military funerals. the court also dismissed a 5 million-dollar judgment from the father of a dead marine. this is an hour. >> we will hear arguments first today in case 09751 snyder versus phelps. mr. summers? >> mr. chief justice, may it please the court? we are talking about a funeral.

if contest is ever going to matter has to matter in the context of a funeral. mr. snyder simply wanted to bury his son and a private unified manner. when the respondent's behavior made that impossible, mr. snyder was entitled to turn to the tort law the state of maryland. >> are we just talking about a hearing? that is one of the problems i had with the case. the results of this video that your client watched later after the funeral. >> it was a flyer that was sent out prior to the funeral. we have the funeral and we have what they described as the epic which was put on the internet afterwards. >> but what does that have to do the general? >> as the district court explained in the circuit court follow their logic and the trial confirmed this, that the ethic was essentially a recap of the funeral protest itself. >> that's fine, but it is just not intruding upon the funeral.

i mean, no. you either have to separate causes of action. one is the inclusion -- intrusion upon the funeral and the other one is the harm caused by viewing this posting on the internet but i don't see how both may relate to in church and upon the funeral. >> and they were just admitted to the jury as one big lump, right? speak we had the wire submitted before the funeral. we have the facts of the funeral and yes the ethics said of course we locust on the targeted comments in the epic when we presented our evidence. >> suppose there hadn't been a funeral protests. just the epic, would that have supported the cause of action you assert your? >> i think that is a closer call but. >> yes or no? >> i would say yes because we have a personal targeted at the attacks directed at the snyder family. >> even though, even though was

just posted on the internet? >> that is correct, just as. >> if he chooses to watch he has a cause of action because it causes him some distress. >> that doesn't mean he is going to win. we still have the pleading standard in the summary judgment standard. >> but why does he have a claimant? i understand after this case arose, maryland statute putting time place and manner -- it seems to me that there was nothing unlawful, nothing out of compliance with that statute that was done here. and it was a considerable distance. there was no importuning, anyone going to the funeral, stopped there for the funeral, the service began. am i right that under the current statute this conduct was not unlawful?

>> justice ginsburg the statute was in place at the time, but it is a confiscated answer to the question because they were positioned about 30 feet from the main vehicle entrance to the church and they rerouted the funeral procession so there were two on -- 200 to 300 feet away. >> didn't they stand where the police told them to? >> they told the police where they wanted to stand and the police said okay. the police didn't say please stand here. >> were they there to the volition of the police? >> it is true they did not violate any criminal statute. >> is there anything to suggest that they maryland -- intended to occupy the field of regulations of the events that occur at funerals? >> i believe the maryland legislature made it clear that they didn't want people to protest funerals and general. >> but they did not prohibit its. >> they didn't prohibited under

certain circumstances. >> which this case which the facts hear me. >> for statutory enforcement, but what we are dealing with here is tort law. >> the statute applies to any protests at funerals. protesting the vietnam war, protesting whatever. your case involves, at least if we accept your version of it, a protest of the dead soldier who was going to hell and whose parents have raised them to go to hell. and so simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the courts. that is a different issue, isn't it? >> that is our position, yes justice. >> unit just what was going on. do you suppose because this has been done before, in fact wasn't this the very same day they did

this at an apple a sand of the state capitol? >> they picketed three locations. >> they knew what it was going to be. could they have gotten -- do you suppose against this? >> i don't think they could have beforehand because although we knew what the signs were going to be, generally from the pattern i think we could guess what the signs may have been but you don't really know what the signs are going to be until they show up. for example in this case, they had a sign that said three straight toys and they had a sign that said god hates you. you are going going to help. >> you could go into court and say the signs for this that and the other thing at the state capitol, the same signed an annapolis. they are going to use the same signs at this protests. >> justice ginsburg from our perspective the signs that said god hates you, you were going to hell referred directly to matthew snyder and we would hope

and believe that the district court could and join those types of specific targeted epitaphs. it for example this was done at a public park in montana, logically i think it could conclude it wasn't directed at the family but when you show up at a 20-year-old marine's general and say you are going to help. >> did they have the going to hell sign at the state capitol is an annapolis? >> the majority of the signs were the same. >> the particular ones that you mentioned, did they have those at the other two legs be yes i believe the only ones they changed where they had assigned for each different branch of the service, matt was a marine. >> it sounds like it was the whole society in their view. >> if we are forced to accept their view yes justice ginsburg that is what they testified to. mr. schneider's view was that god hates you and you are going to hell sign specifically

referred to matthew snyder and the thank god for dead soldiers mr. schneider interpreted that referring to his son because after all matthew was not the only deceased or arrange/soldier. >> you said the fourth circuit court found that those signs -- the family rather than the whole u.s. society? >> the god hates you and you are going to hell signs were the ones that the fourth circuit said they can avoid that issue because they can simply say this was a -- and protected pursuant to this interpretation under defamation law and its extension >> do you think that the epitaph is relevant as an explanation of some of these arguably ambiguous signs that were displayed at the funeral? for example, you are going to hell, god hates you. if you read the habitat perhaps

that sheds light on who you is. >> it can shed light but if you put this in the context of a funeral goer justice alito, which you have, it is a typical funeral. family members driving. >> jow but the signs say you and the argument is made he doesn't mean matthew snyder. it means a larger group, and then you have the -- which is directed directly at matthew snyder. does not show, shed light on what you meant on those sites? >> correct in that is where i was going to go with that justice alito. the epic specifically referenced matthew snyder by name, specifically referenced matthew's parents by name. so when our judgment and the defendant testified that the epic sort of explains at least in their explanation, explains the funeral protest itself.

>> this is about a funeral. a meaning i understand there was a funeral and it but the first amendment question it seems to me a broader and different question. did your client see the signs for car i gather he didn't see the signs. he just saw the tops of sign so he didn't read anything on the signs. >> he didn't read the content. >> he hasn't seen it so how did your client find out that the signs, the tops of which he sought the funeral, when the demonstrators were standing with the approval of the police 300 feet away, how did he find out what they said? >> your speier honor, two days in advance they sent out a flyer announcing they were going to protest the funeral. they had matthew snyder's picture there. they claimed they would protest at saint john's. >> did they say -- my question is, how did your client find out

these very objectionable things on the signs? how did he find out what they said? >> he found out about the specifics of the signs by going to the family wake immediately following and seeing it on the television. >> okay so now we have two questions. one is, under what circumstances can a group of people broadcast on television something about a private individual that is very obnoxious? because of the funeral he say i accept that from your point of view, that is very obnoxious and the second is to what extent can they put that on the internet? where the victim is likely to see it either on television or by looking it up on the internet. those are the two questions that i am very bothered about. i don't know what the rules ought to be there. that is, do you think that a person can put anything on the

internet? do you think they can put anything on television even if it attacks say the most private things of a private individual? does maryland -- does maryland's law actually inhibit that and know it does and what should the rules be there? >> have i said enough to get you talking? >> yes, your honor. right now the rule we are stuck with is ball well for emotional distress. >> that you claim that falwell was a public figure and the snyder family was not, so i think what i got from your brief is you don't fall under that case because you are not dealing with a public figure. >> that is correct justice ginsburg.

>> the more you say about this the happier i will be. >> the private targeted nature of the speech in our judgment is what makes it unprotected, so for example the habitat is directed at the family would be unprotected. if for example a person repeatedly put on the web site that mr. smith has aids. whether it is true or not essentially at some point in time it might rise to the level of an intentional affliction of emotional distress. >> so you have no objection if the sign said get out of iraq, an antiwar protest in other words not directed at this particular individual? there is no objection there. >> i don't think they are constitutional impediments -- the constitution would bar back from going forward. >> so the intrusion upon the privacy of the funeral was out

of the case? >> the@would intrude upon the privacy of the funeral. >> is not really what you are complaining about. you are complaining about the personal attacks, aren't you? >> yes and i think under a certain scenario you could have regardless of the sites you could have a scenario where the funeral was disrupted and it was disrupted in this case. >> was or it wasn't? >> it was. >> when the service itself began, the protesters stop. >> the police justified a think it was about eight minutes after the funeral started that the protesters left the area. >> did they have a different entrance? is that the extent of the disruption? >> well, according to i believe all the witnesses, yes they had to. >> in order to avoid the protests. >> that and they said my took away according to the priest that was core dating the mass, they certainly took away the

peaceful experience that all private figures. >> but you would have objected to that if they weren't these nasty signs. >> i hope they said justice scalia that under the right context, that is all we are saying. there is a fine out there that says god hates america. i don't think we could have acclaimed there but if they infected disrupted the funeral, i do think in some set of facts or could be a claim. >> council, i am trying to tease out the importance of whether the person is a -- figure. a private person or a public figure. does it make a difference if i am a rafting public comments to a public or private figure? >> well, in the context of defamation, we had the rosenbloom followed by the gertz decision. >> i am talking about in terms

of infliction of emotional distress. if i am talking to you as a marine, if you were a marine and i was talking about the iran war, and saying that you are perpetuating the horrors that america is doing and said other things that were offensive, which you have a cause of action because you are being called to perv -- a perpetrator of the american experience? >> i think there has to be a lot more facts involved. >> but you are saying yes, so a speech on a public matter is directed to a private person should be treated differently under the law? i think that was part of what justice breyer was asking. is that what your position is? >> public speech even directed to a private figure should be treated differently then as

directed towards a public official. >> alright and under what theory of the first amendment would we do that? what case would stand for the proposition that public speech or speech on a public matter should be treated differently, depending on the recipient of the speech? >> gertz birchers welch treated the public versus private status different. >> that was defamation, wasn't it? >> correct, but the only other case we have to use with intentional emotional distress. from this court in hunter versus falwell, hunter versus falwell clearly dealt with a public figure. the states has interpreted as not applying to a private figure. >> but have they done it in the context of differentiating between public and private speech?

>> yes, in a case we cited in a brief where it was specifically saying it was a matter of public concern and they said the plaintiff was not a public figure. therefore, it meets the elements of infliction. >> i was talking about the supreme court case that suggested that we would treat -- we would treat the first amendment and the rights to speak on public matters frequently depending on the person's to whom it was directed. >> i think gertz versus -- versus welch says that. >> now going to the context of this speech, do we look at the words on on the sign alone or do we look at the entire context of what all the other sign signs that the demonstration, to determine whether or not the speech here was public or private speech? >> i think we have to look at

the particular sign because we don't anyone could come up with a public concern because they could direct any type of habitat at a person and of the middle of the paragraph a paragraph theyy say -- and therefore the entire. >> i'm a little concerned that your current acceptance of the proposition that if one comes up to a marine and says you are contributing to a terribly unfair war, that alone would form the basis for the tort of intentional -- what are the requirements for that? i thought it had to be outrageous conduct. doesn't have to be outrageous conduct? >> it does justice scalia. >> why except that is parallel to what you are claiming is? >> what i meant to say if i didn't is there would have to be a lot more facts involved to rise to global of an emotional

distress case of the told the marine for example you are not in favor of the war. >> what about -- you have an instance where two defendants have said on television or on the internet something absolutely outrageous. you show that and you show that it was intended to and did inflict serious emotional suffering. you show that any reasonable person would have known that likelihood and then, the defendant says yes i did that, but in a cause, in a cause. and now, in a cause that we are trying to demonstrate how awful the war is. at that point i think the first amendment might not leave this alone. but if it is not going to leave this alone, there is where we need a rule or we need an approach where we need something

to tell us how the first amendment in that instance will begin to enter a force of balancing. is it that you want to say no punitive damages in such a case are that you would have to insist upon it or ticket would be clear for a reasonable connection between the private part of this and the public effort? said he thought about that at all, because that is where i am thinking and having trouble. >> i think the standard generally does not apply. >> falwell is defamation. >> i thought it was intentional. >> okay, good. thank you. answer then please. >> i think the role does not apply to a private figure unless the defendant share some compelling connection there. if you at least -- in this case they don't claim there is a

connection. they just use this moment to hijack someone's private event when they are grieving over a 20-year-old child's funeral. spain mr. summers it seems to me to have one -- that is key to the whole decision and it goes like this. says outrageousness in the area of political and social discourse has said inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors case where abuse or perhaps in the basis of their dislike of a particular expression. how does that sentence, how is that sentence less implicated in a case about a private figure than in a case about a public figure? >> at least in -- justice kagan and -- versus falwell behead a traditional. hear what we are talking about is a private funeral. i would hope that the first amendment wasn't enacted to

allow people to harass people at someone else's private funeral. >> that goes to the question that was asked previously about suppose you had a general statute they just said there will be no disruptions of any kind at private funerals. pick your distance, 500 v., 1000 feet but something that didn't refer to content and didn't refer to ideas that made it absolutely clear that people could not disrupt private funerals. what harm would that statute not address in your case? >> the states have in the statutory case they have the interest of analyzing the offending party and in tort law the state's interest is to provide a remedy for its citizens. under the fourth circuit's interpretation of mr. schneider has no remedy. none. he is a private figure, grieving father and left without any remedy whatsoever.

>> do we have other instances where conduct is lawful, meets all the terms of the statute that is meant to govern protests at funerals and yet there is an award of damages permitted? >> i believe they hustler versus ball where had several tort claims. i understand that it went the other way because the public figure status but that was an example. another example. >> i am asking you for an example where in a federal case, where the conduct was permitted by the statute by the police there and yet, there was a damage award. >> justice ginsburg i am not aware of any case but i think

for example of someone sue someone for defamation there probably wouldn't be a statute statue that was violated so. >> i am talking about this intentional of -- affliction of emotion. >> i do not have any federal cases to cite to you. >> is this a situation which all conduct complies with the maryland funeral protests statute is lawful? has the maryland lets searchers said these are the exclusive regulations that apply here so that if someone came up to mr. phelps at the funeral and spat in his face that wouldn't be illegal? >> justice alito i don't know whether that. >> it certainly would be because of the distance. you have to be a lot closer in the maryland statute allows.

>> perhaps you would like to answer justice alito's question. >> i believe that you could commit a tort and still be in compliance with the criminal code. >> suppose if i don't think you have a cause of action for invasion of privacy when these people were at this distance from the funeral, but that was one of the causes of action submitted to the jury. if i disagree with you on that cause of action, i suppose i would have to say there has has to be a retrial than? >> of course this court could do that justice scalia. >> you have to support both causes of action here. >> yes justice scalia but according to the fourth circuit and we agreed that the respondents way that issue by not appealing that issue. >> waved what issue? >> the invasion of privacy. they didn't -- that wei the

elements of the tort. they contested the constitutional issue but not whether or not we met the elements of the tort. >> thank you council. >> miss -- ms. phelps? >> mr. chief justice may please the court? members of the westboro baptist church entered an ongoing extensive public discussion and a wide array of expressive activities taking place in direct connection with the funerals of soldiers killed in iraq and afghanistan they did so with great circumspection and they did so with an awareness of the boundaries that have been set by the presidents of this court. court.

>> ms. phelps, suppose, suppose your group or another group or picks a wounded soldier and follows him around it demonstrates that his home, demonstrates at his workplace, demonstrates it is church, basically saying a lot of the things that were on the signs or other outrageous things. and just follows this person around day today. does that person not have a claim for intentional infliction of emotional distress? >> any speech or activity like stalking, following, importuning, being confrontational could indeed give rise to the cause of action. >> demonstrations outside of the person's home, outside the persons workplace, outside the persons church, it demonstrations not disruptions. you are a war criminal, whatever

the signs say. >> my answer justice kagan is no i don't believe that person should have a cause of action. you couldn't give that cause of action without direct reference to a viewpoint which is exactly what happened in this case. >> we did have the doctrine of fighting words, and you acknowledge that if somebody said you know, things such as that to his face, that wouldn't be protected by the first amendment? >> we agreed that fighting words are less protected under the first amendment. if i may add this, fighting wars requires eminence. they require proximity and they require a lack of those words being part of a broader political. >> is that so? do we know that? >> i beg your pardon? >> do we know that? is that the criterion of the

fighting words exception to the first amendment that there be an actual fight? certainly not that. is it a requirement that there be a potential for a fight? i doubt it. where'd you get the notion that it has to be an imminent fight? >> i guess the notion from the series of cases starting within seven years after the case with the gooding case and on down through the brandenburg case. >> which say what? a person was truly -- the fight was not imminent? >> that defamation and -- the working definition of fighting words if they have to be words which by their nature are likely to incite an immediate breach of the peace and not occur in the context of some social educational or political kind of speech and if i may hasten to add justice scalia, these respondents were not charged with fighting words.

the jury was not instructed to limit themselves to fighting words. no element of the tort under which liability attached includes fighting words. the words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway and this nation about dying soldiers, about the morals that the nation. >> but ms. phelps, there is no question that the signs, signs like that we saw during the vietnam war, but you had the demonstration at the capitol and you have the demonstration at annapolis. this is a case about exploiting a private family's grief, and the question is why should the first amendment tolerate exploiting this be read family

when you have so many other -- for getting across your message. >> several pieces to that justice ginsburg. when i hear of the language exploiting their bereavement i look for what is the principle of law that comes from this court and the the principle of as i understand it is, without regard to viewpoint, there are some limits on what public places you can go to to deliver words as part of a public debate if you stay within their bounds, and under these torts even, this notion of exploiting, it has no definition in a principle of law that would guide people as to when they could or could not, and if i may --. >> is that your argument that the first amendment never allows a claim for the intentional infliction of emotional distress based on speech, unless the speech is such that it can be

proven to be false or true? is that your argument? >> guessyes, justice alito and with a little bit more from your cases if i may. not under an inherently subjective standard and where you are -- your only claimant that the impact of the speech was at first emotional impact. >> justice kagan gave you one example. let me give you another example along the same lines. let's say there is a grandmother who has raised a son who was killed in afghanistan or in iraq by an ied and she goes to visit her grandson's grave and she is waiting to take a bus back to her home. while she is at the bus stop someone approaches and speaks to her in the file tones about her son. he was killed by an ied. do you know what ieds do? let me describe it for you. i am so happy that this

happened. i only wish i were there. i only wish i could've taken pictures of it. and on and on, you know. is that protected by the first amendment? there is no false statement involved in it is truly speech. >> and it may give rise to some fighting words claim depending on the proximity in the context. speak it is an elderly person. she is probably not an ape position to punch this person in the nose. >> she is a quaker too. [laughter] >> ... and that the grandmother had not done what mr. snyder did in this case. mr. snyder from the moment he learned of his son's death went to the public airways multiple times in the days immediately before and immediately after. >> what is your answer to

justice alito's question? do you think the first amendment would bar that cause of action are not? >> it would have to be a very narrow circumstance where it didn't. >> so you think there are situations where the tort of intentional infliction of emotional distress is allowed even for a matter of public debate? >> you not public debate mr. chief justice. that is not the way i understood that hypothetical. >> i understood the hypothetical that the person disagreed with the war in iraq and the sending of american troops there. >> they knew that this elderly woman was the the grandmother of a soldier and i would ask a question and the hypothetical how they knew, which is why i was making reference to what mr. snyder did. >> if a person selects the grandmother because he thinks i will give maximum publicity to his views. now, does the first amendment bar that cause of action are not? >> at the grandmother entered the public discussion the first

amendment or ours at. >> justice alito posed the grandmother was returning from the grave of her grandson. does it enter the public discussion about? i'm anxious to determine whether in those circumstances you think the first amendment allows that cause of action are not. >> i'm reluctant to say it does not mr. chief justice. >> but you gave the answer before. you said stalking. is and is comparable to stopping? >> that is what i was trying to liken it to end that is what it sounds more like to me. >> you think it satisfies the normal tort of law against stalking? i thought a lot more was required. >> mr. chief justice i would not file that claim for that person for that elderly grandmother. i'm not prepared without knowing more to say absolutely there could be no positive action. what i am prepared to say is there was absolutely much more than that. >> well, there's a possibility that there is a claim there and what distinguishes that in this case? i thought you were beginning to

say that my hypothetical is different because mr. snyder made his son into a public figure and the question i wanted to ask in that connection is whether every bereaved family member who provides information to a local newspaper for an obituary, thereby makes the deceased person a public figure. >> enough the deceased person justice alito. we don't allege that the unmanned dad was a public figure. >> but if the grandmother calls the local paper and says let me tell you something about my grandson who is was just killed in iraq. he likes football and camping. that makes her a public figure? >> it is getting closer and justice alito if she went on than to say, and how many more parents like me and my -- are going to have to suffer this way and when will this senseless war and? i have gotten congressman murtha

on the phone and talked about the situation and i'm against the war and then proceeded to repeat that question in the public airways repeatedly. then, a little church where the service of god are found say we have an answer to your question that you put in the public airwaves and our answer is, you have got to stop sending if you want this. >> your response to justice alito is dwelling on the facts of this particular case. i am interested in knowing what your position is on the broader question. can you imagine a circumstance when the same type of discussion is directed at an individual and yet would give rise to a tort of another -- and emotional distress? >> i can imagine that there could be a circumstance, a hypothetical where there was not this level of involvement and it was out of the blue and it was a quote if i may use the term.

>> if you recognize that there can be a tort of emotional distress in circumstances like that isn't that the factual question of whether it rises to that level of outrageousness which is part of the tort for the jury? >> i don't agree with that mr. chief justice because you have now taken an inherently subjective standard with the absence of any of these nonspeech misbehaviors and now you are back to the only barrier between a person and their first amendment right to robust public debate including this court has said outrageous statements. which is that inherit standard and that subjective statement of emotional impact. this court has said repeatedly --. >> doesn't make a difference, which seems to me it indicates here, that mr. snyder was selected not because of who he was but because it was a way to get maximum publicity for your clients particular message?

>> that is not accurate mr. chief justice with due respect. >> assuming it is agreed as i make a difference? >> the motive of the speaker to get maximum exposure which every public speaker pines for, looks for, strife tour and is entitled to does not change the legal principle that is at play. >> it might affect not the selection inflicts emotional distress for a reason unconnected with the individual who was the subject of emotional distress. if the person is selected because as i indicated it gets maximum publicity, rather than because of a particular connection to the matter of public debate, i wonder fat makes a difference? >> i think it makes a difference when you are looking at what role the plaintiff had in that public discussion and how -- the

words they seek to punish our two is rolled and that public discussion. i think that is how you get to the point. >> misspells let's say we disagree with you as to whether mr. snyder had it all injected himself into this controversy. let's take a case where it is clear that the father of a fallen soldier had not called in any newspapers have not said anything to anybody, but a group knew this funeral was taking place and was there with the same signs, with the same -- are you saying that makes a difference, that they're there would be acclaimed? >> i am saying it does make a difference but know there would not be a claim there in my opinion. >> so it is not a difference that matters? >> it is a difference that matters under some measure justice kagan. i believe the umbrella protection under the first amendment that this court has

established firmly in his speech on public issues. sometimes you get under that umbrella because it is a public official or a public figure but the umbrella that you give the protection for his speech on public issues. nap when a plaintiff comes to your court and says i want $11 million from a little church because they came forthwith some preaching i didn't like, i think it does make a difference for the court to look closely at what role did batman have in that public discussion and? >> your argument depends on the proposition that this is speech on the matter of public concern. is that correct? >> absolutely justice alito. >> that make you be this example. suppose someone believes that african-americans are inferior, they are inherently inferior and they are a bad influence on this country so a person comes up to an african-american and starts berating that person with racial

hatred. this is just any old person, and a african-american on the street. that is a matter of public concern? >> i think the issue of race as a matter of public concern. i think approaching a person -- and we would never do this. >> that simply points out that all of us in the thurlow stick society have components to our identity whether republicans or democrats or christians or atheists. we are single or buried, old or young. any one of those things you could turn into a public issue and follow that person around me can that person to target of your comments, and in your view because this gives you maximum publicity the more innocent, the more removed the person is, the greater the impact.

the justice alito hypothetical and the -- case. i think you are in -- may not deal limiting factor in cases where there is an outrageous conduct and where there should be a tort. >> well but again, this court has given substantial long-standing protection to speak on public issues and how could it be said that the dying soldier is not on the lips of everyone in this country and it is a matter of great public interest and why they are dying and how god is dealing with this nation for you to consult and see at the very same funeral right outside the front door of the church where people with flags and signs articulating the god -- viewpoint. >> your position as you can take us and follow any citizen around

any point. that was the thrust of the question of justice alito. you should help us in finding someone in there. >> i will help you justice kennedy and i'm pleased to do that because we don't do follow around this church. we were 1000 feet away, seven picketers 1000 feet away out of sight out of sound not just standing where the police said to stand. >> but the hypothetical points out that there can be an intentional infliction of emotional distress action for certain harassing conduct. >> for harassing conduct, not for speech, not for public speech justice kennedy. >> torts and crimes are committed with words all the time. >> i agree with that and there's never been any allegation that the words of the westboro baptist church were in any category of low value or less protected speech. >> you are concerned about --

surely the fighting words whether something is a fighting word, that is a very subjective call, is that? >> i believe your cases give good light on that justice scalia. there may be in some peoples minds and element of subjectivity. >> you think that is solid? absolutely with a fighting words whereas what is an outrageous statement is very much different from what is a fighting word? i don't see the difference. besides which is that the in it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the entry injury with some physical manifestatioe plaintiff here had. and my goodness for fighting words you don't even need that. you can just say you know these words angered me to the degree that i would have been inclined

to fight. at least for this tort, you have to have physical manifestation. isn't that a very objective standard? >> well, because the court said it was inherently subjective in the falwell case and i think the language that justice kagan brought forth and there are a few more paragraphs that follow identified rights inherently subjective and the way this case was tried indicates objective where all the two signs and then three were identified as actionable by a strained reading of those words, all of the -- the westboro baptist church including all the signs of that picket all of the signs at other pickets and all their doctrines went to a jury with that inherent -- speier.depends upon the proposition that if what is outrageous is more subjective than what is fighting words. >> justice scalia i must hasten to say this. i am not a fan of the fighting words doctrine.

i do think it has problems. i just don't think it applies in this case. >> we have not allowed the fighting words -- you say that to me and i am immediately going to punch you in the nose because it is an instinctive reaction. i think the court has rejected spreading fighting words beyond that and especially to where there is just emotional injury. that is where a particularly think i particularly think all those of penske would have suggested and brought language you have not gone that way in any of the cases and again i have to reiterate you have required an immediacy and intent whether a fight ensues or not i do understand that hasn't been pinned down as a requirement but an intent that your purpose is to mix it up with somebody, not to go out and say nation, here in this little church come if you want them to stop dying and stop sending that is the only

purpose of this little church. a thousand feet away could not possibly be fighting words. >> we are still worried about the statements on television and on the internet and the knowledge they are. i am starting, i'm trying to get the same answer or knew i was trying to get from your colleague. brandeis said the right to be let alone is the most important and so he must have been thinking there could be a tort. for interference but with privacy and the first amendment doesn't stop state tort laws in appropriate circumstances and emotional injury to liberally inflicted to be one. and i think it is one. but i see that in some instances that could be abused to prevent somebody from getting out the public message and therefore am looking for a line. let me suggest, i will see what you think it may be can think of some others. you could make the judge make

the decision and not the jury and the judge could say whether in this instance it was reasonable for the defendant to think that it was important to interfere with the emotional life of that individual. you could say if that was so there will still be no punitive damages. there could be ordinary damage. you could remove the protection from the defendant in an instance where the defendant nonetheless new, actually knew that they were going to cause an individual who is private severe injury, emotional injury irrespective of their public message. so what i'm doing is suggesting a number of thoughts of ways of trying to do what i'm trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing

to do. now maybe this is impossible, this task but i would like your thoughts on it. >> thank you justice breyer and i'm taking we are speaking out the intrusion claim and i believe i could offer you a compare and contrast to extremes that may help is here. on the one hand you have a body of law that comes under the heading of captive audience and you can go into that body of law and read all those cases in one sitting so to speak rum which you could conclude that it is very narrow, has very limited and there must be some actual physical, sound, sight intrusion if you are talking about invasion of privacy. at the other extreme for a compare and contrast, is what they seek in this case, with the trial judge gave them in this case which is in an unspecified period of time that each individual will called their morning period. no one anytime, anyplace, any manner may say any word that mourner says caused me emotional

distress. >> why are the members of the family of the deceased a captive audience at the funeral? >> if we were right outside the door like the other express or's ers were in these exhibits they might have been. your body of law of that captive audience in colorado, that line of cases recently taking the picketing where they by the way specifically said, this isn't about content. you have got to be -- i will use the colloquial term, the term the court court use was confrontational. you can't be a captive audience with -- to someone that you couldn't see. >> i thought the targeted picketing of a person's house is not protected by the first amendment. >> picketing directly in front of can be regulated and even in. >> what is the difference between that and picketing around the side of the funeral?

>> proximity justice alito. because a captive audience dr. has flushed out and those abortion picketing cases, what you are looking at was it that tactical for the person to avoid it without having to run the goblet? that is why you said the only objection you can have there is get up and close the blinds. >> it doesn't have to do with whether this is what you characterize as a public funeral as opposed to a private funeral? that is not the distinction you are relying on any longer? ..

teaching him to, i think, defied the creator and commit adultery. at what point and how do we create personal attacks and permit those as opposed to. >> i fully accept her title in some circumstances that we can speak of any political list you want. what is the mind between doing that and personalizing it and creating hardship to an individual? >> i agree mrs. sotomayor, when the father used the occasion to put a question out in the public airwaves repeatedly. >> so if we disagree that that

made him a public figure, if we view him as a private figure, is that enough to defeat your argument? assume these are private figures and you did this. so explain to me how you're protecting the person. >> without regard to what label is put on a person who steps into -- >> you want to change the assumption. you have now made the statement that a individual within crisis. >> i don't know that, just to sotomayor. i don't know if i can give you an answer as you framed it. what i can tell you aside hopes of poor would have great difficulty making the roof like that with you call yourself private, public, ltd., whatever

come to you, the person, but you step into the public discussion and make some public statement and then somebody wants to answer you. >> did mr. snyder, the father, become a public figure simply because his son was killed in iraq? >> no, mr. chief justice. >> if he didn't take out the usual obituary notice, and in this case you cannot other way. >> it's not the obituary, mr. chief justice. he went far beyond that. >> with the heat is nothing other than bury his son. >> he does nothing. without i get them. >> you don't get the maximum publicity. my question is did he simply buries a son, you see a public figure open to this protest are not?

>> i don't know the context of order if i can give you a definitive answer that. it was not an issue of seeking maximum publicity. he was an issue if you've been an existing public platform to bring the viewpoint that was not being articulated for two years. >> what is it called after he puts in the obituary information and call by the local newspaper and asks for comments and he says where she says i am proud of my son because he died in the service of our country. and that's stepping into the public to debate by but do not? >> i can't say that in public. >> mr. summers, you have four minutes remaining. >> thank you, mr. chief justice. >> i ask you to go back to an answer you gave to one of my colleagues when you are up you said that a more standard antiwar demonstration get out of

iraq, war is immoral at his funeral, same distance, same size sign from a more antiwar demonstration would be protested by the first amendment from infliction of emotional distress. i am wondering why that is. to you think what is -- what causes a lack of protection is the kind of private funeral. the exploitation of a private person, the appearance for no other reason than to gain publicity at a private event. if that's the problem, why doesn't that also apply to a standard get out of iraq, war is wrong kind of demonstration? >> justice kagan, that is one that is a much closer call. i would do the fact is he at the funeral disrupted. but that isn't the fact of our

case. the fact of our cases wanted was disrupted into it personal, targeted assault. >> suppose it's not disrupted. and i know that you can test these facts, that they stopped when you started, the day were sufficient number of seats away from the funeral and so forth. so we just talking about the fact that there are people who are appropriated and taken advantage of a private funeral in order to express their views and they are in compliance with all the content mutual roles. >> at the much closer call. >> why is it a closer call? >> it is a closer call because it is not a personal targeted nature of the attack on the snyder family we have in this case. >> does that mean we have to start reading each sign and saying war is wrong on one side

of the line, but on the other side of the line, that what you have to do? >> i think that generally speaking, yes, that the district court would have to look at the signs that the district court did in this case and determine which one he believed would direct it as a family and which ones are not. there is a comment earlier but all the signs were presented by the respondent, not by mr. snyder. >> i guess that kind of a call is always necessary under the tort that you are relying upon. it has to be outrageous, right-click >> it always requires that kind of a call last the court as unconstitutional as applied to all harm inflicted by wars. >> correct, justice scalia

requires outrageous. >> that is true, but i was assuming a situation that the jury found that war is wrong, that the jury did find that outrageous on the question was that we go to the reverse jury verdict because the first amendment prohibited it? >> again, i would say yes to a general statement does not disrupt the funeral, does not target the family. i'd say it's a much closer call than more likely the constitution will prevent the claim going forward. >> thank you, mr. summers gave the cases demanded. >> violence continued in libya's military planes bombed eastern areas controlled by the opposition.

>> in his third televised speech since protests began in libya, leader moammar gadhafi offered in the country for the uprising. the libyan leader also criticized the u.n. for moving forward on resolutions against his country. this portion of the speech is courtesy of the al jazeera network. [speaking in native tongue] >> translator: we wish to jump on the bandwagon of terrorist.

they are mistaken. those who are armed or not recognized and can not be recognized. we will be labeled infidel. my children in benghazi who are carrying on shall not jump on the bandwagon of terrorism. they will not gain more out of it. they should abide by those democracies security and safeguarding our territories. they should not work to give the outsiders to intervene. you can disdain and to the americans that see where for decades. terrorism and libyans will die if native americans that were at their territory.

>> these are the clashes explained. now, all the libyan people have the right to address the issue of constitution, ngos are not concerned with the media or newspaper. demonstrators are backwards. the absolute majority of people are backing and supporting gadhafi. i will make the libyan people free. any libyan is working anywhere in the wo

free. any libyan is working anywhere in the world with his head held high. the outside forces wish to bring us to our knees and it will slay, which will remain undecided. now we started to lose your dignity, your land, your freedom, your oil. now i regret to say production is declining to the degree that one day you cannot receive your pay as there are terrorists attacking you. one is wishing to establish. if one wishes to establish and acquire, we remained standing and working? let us see the shape and far

this empire. they told me once that the intellectual culture, liberals switched to establish democracy. i told them okay. he said, we put the democracy to a test. what, how through elections. he told me other people of the village did not exceed anything. i told them we do not wish to test it. even those seeking to establish an islamic state, like al qaeda, we wish to put it to a test. let's see how women and women's conditions will be. economic conditions.

don't fight them. let them establish the islamic empire they are if the citizens except to see, one of them being killed everyday, one of the women it's been every day. let them -- let them experience an armed man starved any house with a firearm and does what he pleases. the libyan people as far distant from our militias and armed groups and armed gangs. the libyan people are far removed from that demand. however, we do not upset to any demand by the elite. we wish the libyan people to be free, even if every libyan

citizen owns his own noose paper. let us be in the hands of the people and decision in the hands of the people. if it is in the hands of the people, will remain unsuspected. however, if it is a hand, if a newspaper is owned by a group, the green mush the other one named -- what is its name? [inaudible] whatever the green marsh, these newspapers are owed a certain bad bodies. if the corporation is the

thinnest kids having shared, news and media should be owned by the whole people to establish their own corporation and own their own newspapers, not the syndicate for union for any. however, those professionals newspapers are objective, too. any syndicate or profession can establish a newspaper. it should be the property of the libyan people were all libyan people should take part. let them act. however the media should be in the hands of the people, not in the volution community.

this is not available anywhere in the world, like what is happening now, this is a grave mistake. those who are opposing the green marsh newspaper have the right to do so because they are presenting the people. other syndicates are representative of certain sides. now i call upon my children not to swim with the tide. [applause] professors, intellectuals and culture, i am always in contact

and consultation with them. i feel satisfied to discuss and negotiate with them. however radical they are. those others are talking directly with islam. i am ready to address the demands of the elite. why not? they are part of us. it is the age of the public, the age of the masses in this manner will be able to solve the issue of media and oppression. i am not afraid of the libyan. made side >> translator: i despise inmates who managed to break free from prison and those who

come in from outside and peaceful, unsuspecting civilians who are not comfortable of the system. they should be satisfied through negotiations, discussions, democracy, respect of our nations. apart from that, the majority of the libyan people have certain demands and these demands are live. a decent standard of living. however, according to your income, the revenue of oil, you will be able to have these demands met. in addition to that, we have been misled, brainwash children. my heart goes out to a young child who dies of an overdose.

those children -- i will tell you how to remedy the situation. if i fail to remember to mention this, please remind me. i have many other points to go through. just remind me of your misled children. we also hear report about assets and bank account balance. it is the balances property and asset of the libyan state. no one has the right or authority to put his hand on these answers. it is a clear-cut act of robbery.

it is the property of the libyan people. however, the balances of certain individuals, any of the libyan, with these balances that are concerned. made side [speaking in native tongue] >> translator: it is not a democracy. i asked them to bring me back $1 million for the people, history. i have no assets. i don't take pride in keeping asset of american dollars.

[speaking in native tongue] >> translator: thank you. okay. let's keep quiet and interview. i was told the intergovernmental authority frozen. i told him i put my finger in the eyes to establish that we keep assets abroad. the libyan assets and property

it is the libyan central bank they are my personal accounts. i am ready to have these accounts verified. my salary is 465. [applause] now, let's speak openly and frankly. you know that i have -- you know my children from my wife, she has a charity organization in this organization receives donations, which are turned out as relief aid, especially in

africa. sometimes these revenues are channeled domestically. no one can claim that these assets and credit balances along to gadhafi. we canngadhafi. we cannot smear our history or glory. we cannot smear the history of our forefather, those who sacrificed their blood. we paid the price in blood. my grandfather was the first to fall in defense of our homeland. he was murdered in the middle of the desert. they were all murdered in murders in defense of our homeland.

we cannot sell this for $10. the currency that has no value at all. these are two assets. this is our true candidate in which we take pride. i do not take pride in any currency. we cannot sacrifice our own glory. this charity organization is channeling the revenues for activities. let them verify the dvds in which these are channeled. another example. what else are they speaking of

clothes still, still i remember the children. he is a very religious man. if you receive any money for funds, he redirects them to the folks of gaza or afghanistan. those who are in need speaking of the outside bank account, and if they are being illegally taken position of as if they were my personal account, it is a great conspiracy, and act of

piracy again of the libyan people's funds and property. i do not think that the outside world will reach this degree of lunacy. they showed certain property assets that were my own palace. it was a grant. it was a gift by the great libyan people. it was you gave me this place of residence. in visio who made this normal

place of residence. let's be clear on that. may god bless you. >> will be listening to moammar gadhafi addressing his people in tripoli during a long speech, which is more than an hour and a half. he describes himself as not to the man who is in power, not a president, just somebody who is essentially holding the reins for the people. he played down the scale of the size of the revolution saying it was only confined to a few places that were in some cases others maul villages. he described as people who are in opposition as al qaeda inspired terrorists. let's go back now to gadhafi.

made side >> translator: i do not believe that any of you will swear. it is improper. from the young to the old. can you imagine that any single individual in the united arab emirates could insult or about five. similarly, i cannot imagine that any single individual in libya can vilify as moammar gadhafi. the young viewers take me as their simple leader. they swear in my name they

always take my name is opposed, in any place in libya. dobby, ms. ms. rocca, benghazi, zawiya, everywhere. the misled families, the misled tried -- i know one of them -- one of the officers they are, he was with me on the night of the revolution, and on the eve of the revolution where we liberated the solution bdo. he is the one of the younger youths who said i can defend our leader, me, with my own life. it is our leader who brought

independence to libya. i cover to the international community and to the whole world, we are not in need of any funding, food or medical supply. we are not like her for her or iraq. any person who speaks of this issue is can you to be a traitor would be committing high treason against libya. any priest and who is speaking a foreign aid will be considered to have opened the door of

colonialism. we have sufficient ration, sufficient food, sufficient medical supplies. we do not need any from outside. please. now, we have nothing but a see . even the movement. if any truck is moving from one place to another, they exercise caution, simply for the reason that it can be hijacked. people are carrying arms everywhere. those moving to the airport, those distributing supplies, food and medical supplies are afraid. everyone fears for his own life.

even the banks. oil escalations, oil fields safe and secure, under control. however, corporations are afraid. they were intimidated by their own states. they told them that armed gangs are launching attacks, company mantra. the oilfield in the heart of the desert don't think you'll have anything to do with peaceful demonstrations in benghazi,

simply because these corporations are aware there are no demonstrations in the first place, only armed groups and armed gangs, launching attacks on oil installations and oil countries. foreign export can be kidnapped. >> thursday, homeland security secretary janet napolitano discusses the 20 told budget request for her department. >> defense secretary gates and chairman mike mullen testified about the president's budget request for 20 told, which

totals $553 billion. the help defense appropriations is over two and half hours. >> the committee would be in order. this morning we welcome secretary gates admirable on and secretary mr. hill come up for what it should improve to be interesting hearing. we come to each other and of the different type of time than we've had in the past. there seems to be more pressure to reduce spending on defense, which is something we're not really used to. we are in a different era now. we are in an era of starting the

process for the fy 12 defense appropriations bill, but we're still not finished with the fy 11 appropriations bill, despite the fact that the election is halfway over. it is not that we can lay any blame on the chairman mr. dicks because he and i am a subcommittee worked very hard to prepare this bill last year and if we had our way, we would have been on the floor and pass before christmas, before thanksgiving actually. anyway, we do have the issue of trying to find money from the defense budget that is not needed. we will do that as we did we did

make sure that we did not adversely affect readiness for our troops. and i would make this promise to you and to our troops. the chairman will not support anything they'll have an adverse effect on our war fighters are on our readiness on the ability of our war fighters to heavy equipment, technology and training they need to carry out their mission and also to protect themselves while they are at it. i know they are working tirelessly to make sure the department's operations are extremely as transparent as possible during this uncertain time in a thank them very much for their efforts. i noticed the political climate has changed in previous years and we have renewed our focus on

deficit reduction. this means even defense must live within the same fiscal austerity be installed across the entire federal government. secretary gates come you can attest to this, having recently given up $70 billion in topline findings over the next five years. so as we go forward, i want to commit we choose not adversely impact the war fighter or jeopardize national security. however, the same time, will find every dime, which does not have a clear and immediate requirement. we know i could we know i could have the luxury of leaving the necessary funding for possibilities will be made by all of this. i think what i'm saying is we are not going to be supporting appropriations they really don't have a requirement, that really don't have a plan for structure

for their use but maybe in the future can be used for reprogramming. we're going to be very careful about. i think all of us working together can be a put that challenge. in that content, but they can then do for your effort in producing the fy 12 defense budget request. we've had the discussion several times as you are developing this and i know you've worked really hard on it and i know your heart is in the right place. it addresses several issues they've been working on for several years. for example, the budget request and then begins to address technical flight or shortfall after yet another joint strike fighter delay and program restructure. for the first time in recent years, the navy is requesting 10 new ships, which is the minimum

to reach a fleet size of 213 ships. and i don't think you'll find any disapproval of that from the subcommittee. they show the requested were funniness finally in line with actual spending petrich or deploy basis. not the least of which are the efficiencies i alluded to a moment ago. many are categorized as better business practices or reorganizations. the department will never fully realized the savings in 2012 and in the out years. in legislated such as increases to try care premiums, which you have not had much success with despite these financial the burdens, they will work with you

in the true bipartisan fashion we have always to make sure you have the necessary resources to accomplish the mission. as you know by now, you really have no better dreams on capitol hill and the members of the subcommittee on both sides of the aisle. remain committed to ensuring that our military men and women have all the equipment, funding and support they need to perform. while com and continue to to wrap up fiscal year 2011 and work towards fiscal year 20 told budget. now let me turn to my friend and former chairman of the state committee, mr. dicks for any comment today to make. >> thank you, chairman young. regrade sidetrip chairman rogers here was been on before assuming chairmanship of the full committee. this morning the chairman welcomes robert gates, secretary of defense. also somebody from washington state. we give them high marks on that.

admiral mike mullen, chairman of the joint chiefs of staff and bob hill, undersecretary of defense who is the comptroller. we appreciate your continued dedication service to the men and women in our armed forces. you appear before the committee in time of many financial challenges. the congress continues to work towards finalizing fy 2011 while we began deliberations on the fiscal year 2012 request. in addition, the committee is doing its work against the backdrop of an annual federal deficit of roughly 1 trillion a total national debt of 14 trillion. obviously this has a profound effect on the outlook and thinking on capitol hill. the department is to be commended for starting to address the financial realities facing the country. i would like to acknowledge her effort to find 70 billion in savings begin on in fiscal year 12 and extending through fiscal

year 2016. in addition we recognize you've realigned 100 billion within the department to exercise better stewardship over dod resources. of course the committee has a keen interest in the details of these initiatives and we look forward to working closely with the department to achieve the most effective use of defense resources. you appear before the committee at a time of significant foreign-policy challenges as well. we are proud of your congressman summer service personnel in afghanistan and iraq. we are committed to ensuring that our deployed forces have the support they require. as the u.s. continues operations in afghanistan and transitions this year to a diplomatic presence in iraq, we are also interested in the strategic view of these operations. what is achievable to continuing operations in afghanistan and how long should we say? what should be the level of u.s. commitment to funding the development of iraqi and afghan security forces?

to what extent should the u.s. defense department be involved in economic development in afghanistan? there are emerging security challenges as well. over the past month we've seen in egypt, tunisia, libya, yemen and elsewhere, an uprising against the government in this country. how is the defense department poshard in the face of these development. there are long-standing national security concerns with iran, north korea and elsewhere. we interested in your views on how the fy 12 budget provides for the u.s. forces in light of the challenges. on the modernization side, and please do the fy 12 request includes funding for key initiatives that focus on current and high and conflicts. and it obviously -- we were very pleased with the announcement earlier this week on the kc 46a and that decision was a pink one that the department i know for

very hard to do completely devoid of any political considerations on the merits. so mr. chairman, i think our witnesses for their great service and look forward to working with you on the issues that are faced. and i deeply appreciate your involvement on the "don't ask, don't tell" issue, which was extremely controversial and difficult. i thought the presentation and the discussion of how our soldiers would adapt to this was extremely well done by you and made it possible to get this completed. we know there's a lot of work to be done. thank you, mr. chairman. >> thank you, mr. dicks. i like to note such presence of the chairman of the full committee who distinguished himself as chairman of the

appropriations subcommittees. chairman -- >> we know how difficult your lot is because of the photon levels and the fact we have not passed a continuing resolution or 11. i know it's restrictions that you are under it but it's very inefficient the way we are operating now. and that's the reason why we passed through the house, as you well know, two weeks ago a continuing resolution for the balance of the year, which included the portion of the omnibus bill that was agreed to last december, but never passed. we merely lifted the entire

section of the almond of this and place it in a continuing resolution, which has now been sent to the senate that we are waiting for this to act. we are waiting for the senate to act and were waiting for the senate to act. we hope and trust that they will pass that bill intact, including vcr for dod, which i think would solve a good portion of your problems. so i'd be interested to hear what you had to say that that due course in time. as my friend, mr. dicks has said, we are under and a sturdy program in this country. we have to rethink, all of you realize that. in fact, you said so. secretary gates, ye yourselves

have mentioned the very serious national security concerns that are gross deficits are becoming in all of you have said words somewhat to that effect. so, we've increased discretionary spending 24% over the last two years. if you include the stimulus, it's 84% increase in just two years. we are pairing 42 cents of every dollar we send. i think it has serious sovereignty implications unless we gain control of it. so i guess what i am saying, on 012, we're going to have to squeeze every penny we can out of spending because we have reached the point where we're broke. and if we start wars and we are

borrowing now, i think were risking some sovereignty that could manifest itself into any foreign policy matters down the pike. they thank you for your service. under very difficult circumstances, rarely have we been imposed in any one country for as long as we have. and we owe so much to you and the troops that you had them they want you to note that we are trying to hope our dear chairman friend in every way we can to help them on the subcommittee realize what you need. thank you, mr. chairman. >> well, thank you, mr. chairman. , we are anxious to hear your presentation, so we invite you to make the statement as you prefer. your entire statement will be placed in the record and you

present it to us in any way you like. >> thank you, mr. chairman. members of the committee, i appreciate the opportunity to appear before you, perhaps for the last time, to discuss the presidents budget request for the next fiscal year. at first like to thank the members of the committee for your support of the men and women in uniform would answer the call in time of war. i know you'll join me in doing everything to ensure they have all they need to accomplish their mission and come home safely. the budget request for the department of defense being presented today includes a base budget request for fy 12 of $553 billion in an overseas contingency operations request for 117.8 billion. i submitted statements includes the details of this request. i do want to take this opportunity go to address several issues that i know if any subject of debate and can turn in finance the outlines of her budget proposal last

january. first they will suffer by operating under continuing revolution resolution for fiscal cover 2011. second the project is so an individual flat over the next five years. third come to plan future reductions in size of the crown forces and for the proposed reforms to the tri-care program for teenage retirees. i want to start by making it clear that the department of defense will face a crisis if we end up with a year-long continuing resolution or a significant funding cut for fy 2011. the president's defense budget for fy 11 with $549 billion. a full-year continuing resolution will fund the department at about 526 alien. that is a cut of $23 billion halfway through the fiscal year. the legislation the house passed a week ago would provide us with

about 532 billion, still a kind of 17 billion. let me be clear. operating under a year-long continuous solution or significantly reduce funding with this severe short telephone and tales what do you research programs, cuts and maintenance could force part of our aircraft fleet to be grounded with depleted facility improvements. cousin operations would mean fewer flying hours come if you were steaming days and cutbacks in training for home stations, all of which directly impacts readiness. mr. chairman, recognized in the current fiscal and political environment, and it's unlikely the department of defense will receive the full but requested for fy 11. based on a number of fact are scum including policy changes that lead to lower personnel costs and reduce the duties by the continuing resolution, i believe the department can have a lower number. although it is my judgment the

department of defense needs an appropriation of at least $540 billion for fy 11. for the u.s. military to properly carry out its mission and maintain readiness and prepare for the future. which brings me to the proposed $70 billion reduction in the defense budget toplines over the next five years. to begin with, this cut is to the rate of the predict growth. the size of the defense budget is still protect did and projected to increase in real inflation adjusted dollars before eventually flattening out of this time. or significantly, efficiencies, reforms that we've undertaken over the past year have made it possible for the department to absorb lower projected growth in the defense budget without sacrificing real military capability. in fact, the savings identified by the services have allowed our military to add some $70 billion to her priority needs a new capabilities. of the $78 billion in proposed reductions to the five-year

defense plan, only 10 billion is direct related to military combat capability. for billion of that comes from restructuring the joint strike fighter program. the rest, about 6 billion, results from the proposed increase and decrease in strength of the army and the marine corps, starting in 2015. that decision all addressed now. just over four years ago, one of my first acts as defense secretary was to increase the permanent strength of our ground forces. the army by 65,000, marine corps by 27,000. the army went to 547,000 soldiers in the marine corps to 202,000 marines. at the time the increase was needed to relieve the severe stress of the force in the iraq war is the search is getting underway. to support the latter class up of troops in afghanistan, and subsequently authorized a temporary further increase in the army of some 22,000, and increased always plan to end

during fiscal year 23rd team. the objective is to reduce stress on the forest, limit and eventually end apart is its top blogs and increase troops home stations while time. as we and the u.s. troop presence in iraq to share, according to her agreement with the iraqi government, the overall deployment plans honor for his third decreases significantly. that is why we believe beginning in 2015, the u.s. can with minimal risk begin reducing army act of duty strength by 27,000 the marine corps by somewhere between 15 and 20,000. these projections assume that the number of troops in afghanistan will be significantly reduced by the end of 2014 in accordance with the president and need a strategy. this would still leave the army with nearly 40,000 more soldiers in the marine corps with 12,000 more marines than when i became secretary of defense. if our assumptions prove

inaccurate, there's plenty of time to address the size and schedule change. these are supported by both the army and marine corps leadership finally as you know, sharply rising health care costs are consuming a never lurching share of this budget, going from 18 billion in 2001 to $52.5 billion in this request. among other reforms, the fy 12 budget includes modest increases to tri-care enrollment. later index to medicare premium increases for what teenage retirees, most of whom her employed while receiving full pension. all six members of the joint chiefs of staff have strongly endorsed these and other cost-cutting reforms with congress. just be clear. the current tri-care arrangement, one of which these have not increased for 15 years is simply unsustainable. if allowed to continue, the defense department was the risk

of other corporate bureaucracies that were ultimately crippled by personnel costs the department fabians and reform combined with a host of new investment will make it possible to protect the u.s. military combat power, despite the declining rate and eventually flattening of the defense budget over the next five years. i should note, and you refer to this, mr. chairman. this will only be possible if the efficiencies reforms and savings were followed through to completion. in closing, i want to address calls from some quarters for deeper cuts in defense spending to address the country's fiscal challenges. but her mind them over the last two defense budget submitted by president obama, we have curtailed or canceled troubled or access programs that would've cost more than $300 billion is seen through to completion. additionally total defense program declined further as the u.s. military withdrawals from

iraq. we still live in a very dangerous and often unstable world. all you have to do is pick up the morning newspaper. our military must remain strong and agile enough to face a diverse range of threats from nonstate or is attempting to acquire and use weapons of mass distraction to sophisticated missiles, to the more traditional threats of other states, both within a conventional forces in developing new capabilities to target our strength. we shrink friend responsibilities that are imperiled. return trip brought about by shortsighted cuts could well lead to costlier and more transit consequences later. indeed as they always have in the past. mr. chairman before closing time i want to raise one item of great concern of urgency. exactly a month ago, the department amended a request for the congressional defense committees to reprogram $1.2 billion in fy 11 funds to assess to purchase needed equipment to protect their

troops in afghanistan. general petraeus requested this equipment is an urgent matter to better protect our forward operating bases as we continue to push into contested areas. the equipment involved is mostly to improve our protection against ied is by enhanced intelligence, surveillance and reconnaissance capabilities, particularly through the very successful use of fixed these sensors. as of last week from all congressional committees except this one have approved this request via mr. chairman, our troops need this protection equipment and they need it now. every day that goes by is a bummer day they will do without. every day that goes by without this equipment. i urgently want to get these items so i can get these important capabilities into afghanistan in time for operations, prior to the fighting season that begins in a matter of weeks. i understand the committee has a

concern over one of the funding sources, the army humvee program. the u.s. military has over 180,000 humvees in the inventory today. 154,000 in the army alone. this vehicle family continues to be a workhorse for network. the army determined over a year ago that we have more than enough, particularly since the act is outside protected areas for several years. with your extraordinary support, we've move to better protect vehicles like the imap, which is saving lives every day. mr. chairman, i wish this were a matter of finding another source of funding, but the size of the cuts come in the congress is proposing in fy 11 budget and uncertainty over the continuing resolution, we simply do not have the luxury of leaving this undated $900 million on the table. ..

>> thank you, mr. chairman. mr. chairman, representative, dicks, and establishes members, i'm honored to appear before you to discuss the fiscal year 2012 defense budget. before i do, let me echo secretary gates comments about the real dangers inherit in failing to pass the budget. fiscal year 2011 if carried forward would not only reduce our account by $23 billion, it would deprive us of the flexibility that we need to support our troops and their families.

the services have already taken disruptive and some cases irreversible steps to live within the confines. steps that make us less effective, certainly less efficient at what we're supposed to do for the nation. it also strikes me that this budget is a budget that we -- the services started working on -- in late 2008. so for the last two and a half years, there's been some planning to execute this budge, which we can't. and also have that kind of affect in 2013 and 2014 as we actually work now to prepare the next budget. the navy did not procure government furnitured equipment, the army and marine corps have curtailed or frozen civilian hiring. all services prevent for issues contracts for new major military construction projects. some programs may take years if

the cr is continued through the end of september. i urge you to pass the fiscal defense bill as soon as possible. it will provide us the tools that we need to accomplish the bulk of the missions we have been assigned. accomplishing those missions into the future demands support of the fiscal year 2012 proposal. this combined with the efficiency effort provides for the well being of our troops and families, current operations in afghanistan and iraq, and helps balance global risk through streamline organizations, smarter accusation, and prudent modernization. the army, for instance, will cancel procurement of a surface to air missile in the nonline aside launch system. but it will continue production of the joint light tactical vehicle and spearhead the development. it army will give up

headquarters and reduce it's man power and increase the use for ships and aircraft, allowing it to continue development of the next generation ballistic missile submarine, purchase combat ships, and another l17. the marines will cancel the fighting vehicle and reduce their strength starting in 201537 -- 2015. they will reinvest to sustain the assault vehicle and light armoured vehicle. even as they advance and restore much of their naval expedition expeditionary skill. the air force will get a new tanker, bomber, and f-15 fighters. all while finding savings of $33 billion through reorganization, consolidation, and reduced facilities.

none of it will come on the backs of our deploys troops. we are ask for more than $84 billion, nearly $5 billion for increased isr, and more than $10 billion to recapitalize our rotary aircraft fleet. these funds plus the partner capacity in places like afghanistan, pakistan, iraq, and yemen all speak to the emphasis we are placing on giving our troops and their partners in the field everything that they need to do the difficult jobs we've asked of them. we must also give them and their families everything they need to cope with the stress and the strain of ten years at war. that's why i'm pleased with the funds devoted in the proposal, almost 3/4 as much as the $200 billion for operation, maintenance, personnel, housing, and health care issues. as you may know, the chief and i pinned a rare 24 star letter to congress, expressing our

unqualified support for the military health care program changes included in this budget. we sought equity across all health care programs with beneficiaries and health care delivery providers having the same benefits and equivalent payment systems regardless of where they live or work. that in turn led us to proposed increases in tricare enrollment fees for working age retirees. these increases are modest and manageable, and leave fees well below the inflation adjusted out-of-pocket cost set in 1995 when the current fees were established. we sincerely hope you will see fit to pass it. please know we will continue to invest wisely to include research, diagnosis and treatment of mental issues, and brain injury, in health services and new battlefield technologies. we understand that changes to health care benefits cause concern among the people we

serve in the communities in which we receive care. but we also understand and hold sacred our obligation to care completely for those who have bourn the brunt of those wars as well as those for whom the war never ends. i remain convinced we haven't begun to understand the toll in dollars and in dreams that war extracts from our people. as the grandsons and granddaughters of the world war ii vets still struggle to comprehend the full scope of the horror those men yet concealed. so too will our grandchildren have to come to grips with the wounds unseen and the grief unspoken. unless, of course, we get it right. i believe the investment we are making in wounded care and family readiness will pay off. but it will take time, patient, and money, three things we seem rarely to possess in this town. that brings me back to this particular budget request. with limited resources and two wars in process, we should be

prudent in defining our priorities, in controls cost, and in our thirst for more and better systems. we should also be clear about the joint force can and cannot do. just as we should be clear about what we expect from our interact si, and international partners. our global commitments have not shrunk. if anything, they continue to grow. in the world is a lot less predictable now than we could have ever imagined. you need to look no further past the events in middle east and north africa to see the truth. i just returned from a tour, visiting seven countries in seven days. at each stop i was struck by the degree to which civilian and military leaders alike desired to keep our military partnerships strong. this desire isn't rooted in the fear, but rather a shared understanding of the external threats to their security and ours which still plague the

region. changes to these relationships in either aid or assistance ought to be considered with cautious, and thorough appreciation for the long view, rather than the flesh of public passion and the urgency to save a buck. the support we provide many of the militaries has helped them become the capable, professional forces they are. in that regard has been of incalculable value. of equal or greater value is increased appropriate the for the state department. our request for something called the global security contingency fund. a three yeared pooled fund between the pentagon and state that will be used to build partner capacity, prevent conflicts, and prepare for emerging threats. the request is modest and initial $50 million appropriation along with a request for authority to reprogram an additional $450 million if needed. but that -- what it will buy us

is an agile and cost effective way to better respond to unforeseen needs and take advantage of emerging opportunities, for partners to secure their own territories and regions. we must get more efficient, absolutely. but we must get more pragmatic about the world that we live in. we can no longer afford bloat the programs or unnecessary organizations without sacrificing fighting power. we can no longer afford to put off investments of future cames across the spectrum of conflict. i have long sense we must not be exempt from belt tightening in defense. there's little discretionary about the security that we provide the fellow citizens. cuts can reasonably only go so far without hollowing the force. in my view then, this proposed budget built on the balance that we started to achieve last year, and represents the best of

fiscal responsibility and sound national security. i would be remised if i did not close by praising the incredible effort of our troops overseas and their families as they finish one war in iraq and begin to turn corners in afghanistan. i know you share my pride in them, and you will keep them foremost in mind as you consider the elements of this proposal. thank you for your continued and long-standing support. and i look forward to your questions. >> admiral, thank you very much. you know we do share your very, very strong support and admiration for our warfighters, our troops who have kept this nation free. secretary hill, do you have a statement? well, then -- mr. secretary, in responding quickly, we agree with you. cr is not the way to fund the nation's national defense. we have tried everything that we could to get that bill passed

last year. we did pass it basically in the form that i think you supported. the defense part of hr1. at least you indicated that last year. we support that. we don't want to fund the defense budget on a cr. so we continue to work that issue and try to get that bill passed. now on the reprogramming, you and i have discussed this before. but my strong concern about how much money we waste in the defense department by starting a program, stopping a program, paying termination fees, investing billions of dollars, canceling the program, and we get nothing for it. taxpayer gets nothing for it. what we -- when we support from general petraeus is asking for. we strongly support that, and we strongly support your position. we would like to analyze with you in some detail another source of that funding.

or how we might work out an issue. on the efv, for example, we had quite a discussion early on about the efv. last year this committee wanted to cancel the efv. the defense department says you can't do that. the requirements are too strong and too powerful. we funded it. this year the story was you got to cancel the program because we can't afford it. we had already spent $3 billion. my question is what did we get from the $3 billion. the responses were basically nothing. we provided language we think in hr1 that would allow oo way -- allow a way to eliminate the $145 million termination cost and get something for that money. and we just think that there's a way to work out this issue with the humvee reprogramming as well. so we would like to just in the

next day or so talk to you more specifically about that. and what we think might be a helpful way to approach this. but anyway, we stand to be supportive as usual. and we want to be what's right for our nation's defense. mr. dicks has agreed, mr. bonner at our brief hearing at our threat briefing, mr. bonner was the only one that didn't get any time. so i offered to give mr. bonner, and he has a very important mission in his chairmanship, and he has to perform that this morning. so mr. bonner, we're going to recognize you now for five minutes. >> thank you, mr. chairman. secretary gates, welcome back to the committee. i think the fact that there are so many members here, in fact, it's almost full, speaks volumes of the importance of your testimony today and the many

important issues that are facing our country and, in fact, the world. and in fact, your own comments in recent days have raised questions here in congress and around the country as we are currently engaged in two wars in iraq and afghanistan. so i'm sure some of my colleagues will like to focus your attention to some of the other pressing matters that come before us today with your testimony. forgive me for being a little get parochial in my questions and my concerns. notwithstanding a friendly disagreement with the ranking member and the gentleman that i have a lot of respect for. the people along america's gulf coast, not the people of france, suffered a great setback last week with the decision that the department made with regard to the case ex tanker. in 2008 while you were secretary

under the previous administration as you will recall, we won this contract. at that time, the eads aircraft was judged to be by your own officials the best value at the best price. it was protested to the gao. gao ruled that on eight process issues, out of someone 150, the department should have amend rfv, seek revised offers, and make an award decision. you chose not to follow the gao recommendation. the contract was canceled. and then you created a new acquisition strategy on the lowest price technically acceptable basis. and the result was that last week the loser of the 2008 competition won the contract today.

you know first hand how the debate regarding government spending, which has been discussed by the chairman and the ranking member and the chairman of the full committee has evolved over the last two years. we have focused now, more than ever, out of necessity to find every savings that we can out of the federal budget. when i joined capitol hill as a young staffer in 1985 with then congressman sunny callahan as his press secretary, the debt of our country was $1.8 trillion. it's now over $14 trillion. so i understand. i think probably every member of this subcommittee understands that the attitude on major defense procurement, such as tanker, has to focus on the bottom line. but i think we all are also

concerned about any affect that this could negatively have on our warfighters as well as on the taxpayers. i trust that we could also agree that the first serious price -- fixed-price development contractor awarded since you and dr. carter initiated this to control the cost of procurement came out this year would be the tanker contract. certainly one of the size of a $35 billion award for 179 planes. as you know, dr. carter recently said the defense department must not start programs that it cannot see through. i think many of us agree with that. and feel it is important that we continue forward in this direction to avoid future debacles like the presidential helicopter and the medium

extended air defense system, both of which were canceled for running over budget and behind schedule. also recently, president obama scratched the virtual fence, otherwise known as the secure border initiative network. the high-tech fence along the mexican border that ended up costing the taxpayers of this country $1 billion that we got nothing for. i realize that's not a d.o.d. project, it was department of homeland security. but it raises the point that money and time were both wasted nonetheless. i personally feel that any unforeseen changes to the kc46a, of which will certainly will be, will leave taxpayers footing the bill, our warfighters at greater risk, and i at least for one feel that the most capable tanker which won the competition the first time will be sitting on some allies tarmac while we

are waiting for the delivery of these tankers. so i want to say without said in the six questions that i have, there's no animosity whatsoever for when you were president of texas a & m and you stole our football coach from the university of alabama. these questions are not about that. these questions win think, do deserved to be asked, and i'm going to ask them in their entirety, if you can't answer them with respect to the other questions, if you could get back in touch with us, i would appreciate it. the first one, in this contest, can you commit to this committee and to the american people that the loser has been and will be afforded the same information this time around as was provided in 2008 which led the winner -- excuse me, which led boeing, at that time, a loser, to make a

well informed protest of the northrop eads contract? number two, historically contractors in development programs such as this have run into major program delays and cost over runs that forced the military to buy fewer models, or even cancel a program. recently, the air force chief of staff, general schwartz said he would have no patient for the graduated sales prices and contractors don't blow smoke up my ass about what a platform can do and when it will be ready. mr. secretary, what assurance can you give congress adding cost in the uncompetitive environment, via change orders, will be strictly prohibited. number three, given the contract, can you tell us what we will be buying with the kc46a. will it be -- mr. chairman can i submit the other questions for

the record? i'll be happy to. but the last question was which tanker will we be get the kc6200, kc72400, and i will get the other questions to you. >> could we hear the other two questions? i'd like to hear the other two questions. >> if there's no objections. >> that's okay, sure. go ahead. you are on mr. dick's time now. so it's okay. [laughter] >> while the loser is assessing their decision whether to protest, it is a beginning to appear that the winner simply bought this contract through the low price bid. that maybe to the benefit of the american taxpayer and war fighter, time will tell. but on the fixed price basis, what enforcement mechanisms will you institute on this contract to ensure that congress and the company and air force will simply not use change orders in

the future to add capability in currently making the contractor whole on the price? my last two questions are that a company official from boeing last week said after the announcement that they would fly their airplane for the first time in 2015. this contest calls for 18 aircraft will be delivered by 2017. so my question is, mr. secretary, have you ever seen a program that will executed that quickly from first flight to delivery of 18 aircraft in your history? and then lastly, i would ask you to provide the committee with the specifics of what we're buying under the kcx contest award, what specific price, and what specific schedule? mr. dicks, thank you for allowing me to get the answers in. >> my answer will be short. given the technical nature of our questions, i will take them for answering for the record

after our lawyers and acquisition officials have thoroughly examined them. >> i figured that's what mr. bonner wanted anyways. thank you for cooperative. you are recognized. >> right. well, i wasn't planning on getting into this. but since the gentleman from alabama who has been a gentleman throughout this entire process raises this issue, i want to make a couple of comments. one, i have been involved in this thing for ten years. i think this time the work of the air force was much better than last time. i would remind the gentleman that the gao said there was seven or eight major violations, any one of which could have turned this in boeing's favor. also when the -- when the gao added up the price, boeing had the low bid as well.

and yet we still lost. there's a question here of fairness. and i think secretary gates made the right decision in turning this over and making him do it again. because of the multitude of problems. and this time i got to tell you, i really believe that the low bid was buy over 1%, and that's why boeing won. that's the clear cut reason. i also want to clarify one thing. there's been some press stories that talked about life cycle cost. i really believe that we have to do a better job of evaluating and bringing in all of the factors in life cycle cost. you know, when we got the john young changed the life cycle from 25 to 40 years, not because of political pressure, but

because it was in the joint requirements document that was done by the jay rock. they said the life cycle should be 40 years. i frankly thought it should be 50 years, because the kc135 which we are trying to replace here were -- have flown for over 50 years. they were all built between 1957 and 1963. so on that point, i just want to make that clear as well. and also bigger isn't better. you know, what -- many of the secretaries had said up to the point of that second go around was that they wanted a smaller airplane because it's more energy efficient. and the life cycle cost. you don't need the military construction. so there are reasons why we wanted a smaller aircraft. in fact, the secretary of the

air force and pete aldridge says the season they didn't let air bus bid the first time was that air bus didn't have a plane that we wanted. that's why the first time when boeing got it, which was approved by everybody in congress, it was because airbus didn't have a plane. their planes are bigger. i know the secretary is going to give you forthright answers. i believe this thing was done totally on the merits. i don't think there was any pressure from anywhere that made any difference. everybody tried to do a lot of different things. i think it was decided by the air force on the merit. and i hope this is a decision that is sustained. >> okay. mr. jerry lewis, former chairman of the committee and subcommittee. notice his portrait is behind

him. mr. lewis, you are recognized. [inaudible comments] >> thank you. i'm concerned about your comments, admiral mullen, as well as secretary gates, regarding the year-long cr, the implication it has in terms of readiness, flexibility that we need to move some of those dollars around. can either of you describe for us what we experienced with a year-long cr last year? what actually was the fallout? you've been through that there. give us some kind of day-to-day blows from what you saw from that cr? >> well, actually, i tried in my opening statement, sir, to capture certainly what we see this year. and there are, you know, there are as -- and we've done this certainly more than once over

time. what isn't captured too often when we talk about -- we are talking about the malta projects we can't start, and the projects that we can't start, what we have to pay for it, goes to the $23 billion piece of this. but you see particularly inside the services they really start to constrict in terms of what they will spend their money on, and what they won't spend their money on. currently, there are costs that we have to pay. we have to pay salaries, we have to pay health care increases. they are given. they really pile up where almost as the chairman said six months halfway through this year without a budget yet. and what's hard to describe are the inefficiencies that it generates that are almost expotential other time. we get to a point where we say we finally get a budget and we'll have to execute contracts

in a short period of time. which are incredibly expensive and inefficient as well. some of the specifics, i mean the major pieces that i talked about, where we have major systems that we are not buying equipment for, we can't buy equipment because we don't have the money. it cascades into the major program. i'll use the submarine program in connecticut. where we cash flow to keep programs going. but at some point in the time the navy is going to stop cash flowing. there are potentially, you know, workers that will get laid off up there. we see that. we talked about freezing, one the first things we always do is freeze hiring. and i mean from one, you know, literally from the major stuff to the kinds of capabilities we execute on a daily basis. it's incredibly inefficient. and services. they can't spend money they don't have in the end.

they really contract and hold back. we get into a point in time, typically as i'm sure you know, summer time, where secondary loses flexibility in being able to pay salaries at some point in time. because the services run out of money to do that. and being able to reprogram that in a way that we must in order to pay salaries which we get from programs, et cetera. so it's -- it is the inefficiency, it's the program piece, meaning we can't start new things. we don't buy things as well as just the almost expotential inefficiency over time. >> let me just add a couple of things. first of all, on a continuing resolution, we're $23 billion below what the president's request. that means there's no funds for the pay raise, for any increase in fuel prices, no money to pay for increases in health care costs, has a severe impact as

the admiral has described on our acquisition program. he mentioned the potential. we've worked for the last several years to get ourselves to the point where we could build two virginia-class attract submarines. fy11 was to be the first year. that's at risk. the air force, that will be -- we'll have to reduce our buy by probably 24 airplanes, we'll have to reduce the buy of ch47 helicopters. all of the services will cut, sustainment, repair, and maintenance. there will be an impact as i indicated in my opening statement on training. we have just gotten back to the point that we have enough army troops to begin doing full spectrum training. now in fy 11 if there's a continuing resolution. there's no money for it. there'll be no new military construction, no milcon, a whole year out any new milcon.

that would describe the troops among other things of a full year of needed construction of new facilities. you know, it'll have impact on special operations, particularly in terms of training and support. but it'll have -- we will probably be in a situation where we will have to dramatically ramp down the work of the army dee poas at red river and letter kenny. then it goes down to the things that affect our military men and women in a personal way. just to conclude with one example. the navy has done, usually -- correct me if i get the dates wrong -- the navy has a practice of notifying families six months before the pcs move. that moteification is now down to two months because of cash flow problems. this has an impact across the entire defense budget, top to

bottom. >> mr. chairman, a lot of discussion is taking place within the department of defense, but also within other agencies relative to our effective use of space in terms of our national defense. yesterday we spent a lot of time in the interior committee talking about the difficulties of that department just to get their agencies to communicate with one another and thereby use dollars reasonably efficiently to carry forward their missions. some of our future capabilities, in terms of really securing our country as well as i think the rest of the world relate to our effectiveness in the way we use space assets, the way we use satellites, and indeed even the way we used unmanned aerial vehicles. i'm interested in having you describe for us, mr. secretary, what the department is thinking about and talking about relative

to our responsibilities in the application of the space assets to our future security. and i really want to know if there are effective communications vehicles between the various agencies involved, and the black world and otherwise, that allow you to be absolutely certain that we are affectively communicating with each other rather than just -- rather than just continuing to secure stove pipes and those standards in the federal government operation. >> well, i will get a detailed statement or response back to you, mr. lewis. but i would just say one the examples of acquisition recore that is in the fy 12 budget is for the first timed, blacked buys of satellites that will meet the need of multiple customers, and allows us instead of contracting one and two satellites a year to the

builders, instead, to give them a predict -- a higher number and a predictable number over a several year period that allows us to bring the cost down. it also forces us to communicate better among the different customers of the satellite builders to do that job. the other is, i worked very closely with the deputy under -- with the under secretary of defense for intelligence a couple of years ago. and he with the director of national intelligence in terms of putting together a joint architecture of what we would buy, both in the white and black world and where we can complicate, i'm sorry, where we can compliment what is often very expensive in the black world with often commercially available satellites in the white world. that allow us, and that would be used by both the department of defense and the intelligence community. so i think we've made white a

bit -- i had more than a little bit of experience with this when i was dci. but i would tell you i think we've made considerable headway over the last two or three years in getting our arms around this and doing it more as a -- looking at it more whole -- holistically. we will get it to you. >> really, sir, i want to make a couple of points. i will strongly echo what the secretary said in terms of focus on this from an interagency standard point. it's much better than it was. the stove pipes are still there. i think we all have to continue to focus on that. secondly, it is a boundaryless domain that impacts our national security and the national security of others. i think there's recently issued a space strategy which i think is a significant step forward

here specifically. which guides us, and the last thing i'll say which i've been concerned about for years in space is the industrial base. so how do we make sure we have a robust enough industrial base, secretary talked a little bit about, you know, this combination of using commercial as well as obviously defense contractors here. how do we make all of that work together? i think we do have to focus on that in both the white and the black world to make all of this work. it's a vital domain, vital requirements that deserves the focus, sustained focus, over a long period of time. >> okay, mr. chairman. >> mr. moran. >> thank you, thank you very much, mr. chairman. mr. secretary, mr. chairman, i strongly believe that you are as fine of a team as has ever led

our national security. but i fear that as history has shown with so many outstanding leaders, that while they were the right people at the right r- in the rights place, they were there at the wrong time. and i worry that your legacy is going to be crowded by our engagement in the afghan war. and i think more and more people are coming to that conclusion. the -- and the reason that i say that, while we've spent $450 billion, you are ask for more than $100 billion again this year. we have seen 1500 soldiers killed, it's gone up each year since 2003. the afghan government is the

most corrupt government in the world. and unfortunately, we've contributed to that $14 billion economy pouring in that kind of money, perhaps, it was inevitable. at one point, we were told that the kabul bank was the most successful postinvasion institution that we had created. and yet we now find, and there was just a saving investigation by the international monetary fund just this month, that about $900 billion has been taken from that bank. much of it went to president karzai and his associated. he has -- president karzai has undermined our mission there deliberately. he has said the teams led by the u.s. and it's allies were designed to bolster governments

were, in fact, undermining his government in kabul. he's now authorized the establishment of a separate police force. the more we look at this, the less justifiable this mission seems to be. and i think you may have noticed the review of bing west's book, front cover of the "new york times" book review sunday. here's an assistant secretary of defense from the reagan administration, former infantry offer. counterinsurgency isn't working because the afghan people will turn on the american troops on a dime. they don't want us there. no matter how already guess that we bring. i think the question that we really have to ask you again is, is the government that we are

backing in afghanistan, the karzai government, worthy of the resources, the sacrifice of lives that the american people, and particularly of the dedication of our soldiers who are fighting over there. secretary gates? >> well, first of all, let me just say i realized full well when i took this job in december 2006 under president bush that i was inheriting two unpopular wars. and that that was -- and i took this job knowing full well that the chances of ending one or both in terms honorable to united states and those who served our national security interest were pretty grim.

i think in the first instance of iraq, we are ending it on terms that are honorable to the united states and serve our national security interest, leaving aside how it began. i think we have to understand the nature of the conflict in afghanistan. we are in afghanistan for our own national security reasons. we are in afghanistan because we were attacked out of afghanistan and the pakistani/afghan border remains an epicenter of terrorism that has the potential not only to destabilize the entire northeast and southeast asia, but still launch attacks against the united states. so our strategy is not focused on the government of afghanistan. our strategy is how do we defeat al qaeda, how do we prevent

insurgent groups from overthrowing the government of afghanistan, and how do we degrade the capabilities of the taliban to the point where the afghan national security forces can sustain them? can sustain their security? now you asked me a very serious question. i'm going to try to give you an answer. it's not one i'm going to do in a sound bite. this has been a very tough fight. as of this morning, we've lost -- since 2001, 1,045 american soldiers, marines, airmen, and sailors. we have at the same time, the afghan national security forces have lost five times that. they are in this fight. and so they believe what they are fighting for is worthwhile. and i think that the consequences of our leaving precipitously, of leaving this job unfinished is that we will

confront exactly what we did when we did exactly the same thing in 1989 and turned our backs on afghanistan. and 12 years later, we're attacked from there. we can't leave this place alone, and i think that those who are in the fight and the closest to the fight in some respects are the most committed to the fight. >> chairman mullen? we know there are 50 to 100 al qaeda in afghanistan on any given day. we know that pakistan serves as the safe haven for the taliban and other anti-american elements. every day it serves as a safe haven. is it possible to achieve any form of military victory in afghanistan as long as there is a safe haven in pakistan for our enemy? >> sir, for a long time, i have

not focused on -- >> excuse me. after the admiral responses, your time is expired. >> yes, i understand. thank you, mr. chairman. >> as i have focused on this area, it has not been afghanistan alone. it has been the region. and i think that's important for all of us. as we move forward here and underpin the strategy and the reason and i believe the same relationship with pakistan that i have spent time on has improved remarkably over the past two or three years. that doesn't mean we don't have our significant challenges. but specifically, for instance, yet again it's been widely reported last week with general on the trip to the middle east region. what i say between general

petraeus and general was a level of cooperation that no one could have imagined across the border in the last couple of years. that's been a lot of hard work to improve the relationship and trust. we are not there. but we broke that in 1989, 1990. we have the gap. and just like the secretary, i believe that we have to sustain that for the long term that downside consequences of a pack -- a nuclear capable pakistan that -- who's government collapses and is there in the hands of violent extremist or thee cattic individuals is a huge, huge danger, globally and certainly for us. i believe we have to tonight to work that. we have to continue to invest in it. it's not going to happen fast enough for any of us.

and our ability to work that has is significant impact on what's going to happen in afghanistan as well. so it is, in fact, working both sides, and, in fact, al qaeda is in much tougher shape than it was a year or two ago. some of the taliban organizations are certainly much more concerned about their future than they were as recently as a year ago. because we finally got the resources right, we finally got the people right, we have the strategy right, and we are starting to turn. no one is more aware of who we've lost and the people that we've lost. but as the secretary said, if you want to talk to someone that thinks we have this right, get out on the front lines with them. all of that said, we can't do it without having some level of legitimate government to pass this off to. at the local level as well as at the national level. so the challenge you lay out is

certainly there. we see that much more clearly than we did in the past, including where the -- where's the money going? how we are audits contracts, et cetera. i think we know what we have to do, and the question is, you know, execution as we move ahead. >> if you'd -- mr. chairman, if you'd just yield. i would like to hear secretary gates address the question that we raised about the government itself. the karzai government, and it's -- the problems there. and what can we -- are we trying to get them to cooperate and to be -- i mean they make comments all the time that make you wonder. here we are making this enormous sacrifice. karzai says things like we're the big problem. give me your take on that. >> first of all, i would say that the competition for the most corrupt government in the world is a tough competition. and i don't think actually the afghans are in the top five or

ten. >> mr. secretary, they are. they are tied with burma. >> not in terms of dollars. >> no, but those are our dollars >> the honest answer to your question is it's a mixed picture. some of the ministries, the ministries that i deal with, that we deal with, the ministry of defense, the ministry of interior we think is pretty good. they are competently led. they are feeding people, they are recruiting people, putting them into the pipeline. they are ahead of their schedule in terms of recruitment, in terms of training, in terms of literacy training and everything else, partnering with us. but they are delivering the young men to us ahead of the schedules that we laid out. which is terribly important to the end of our strategy. but i would say that, you know, let me just say a word about president karzai. i think we have done a lousy job

of listening to president karzai. because every issue that has become a public explosion from president karzai has been an issue that he has talked to american officials out repeatedly in private. he like the iraqis before him, complained a long time about the private security companies and how they were out of control. nobody had oversight over them. he told us that repeatedly. he didn't go public until he'd reached the end of his teeter. civilian casualties, it wasn't until general mckiernan and mcchrystal got there until we started taking the civilian casualties seriously. it was something that he raised every single time. these issues that ended up with him having the explosions, the critical comments that he has in

my view in most instants, there is a basis for that. maybe he over does it, maybe he carries it too far, but that's a reality. and, you know, the truth of the matter is, again, this is one the things that the administration has looked at and has spent a lot of time other the last several months on. where do we -- where do we set the standards in terms of our goals? we are not there to build a 21st century afghanistan. what do we need to do in terms of development, both in terms of governance, and also in terms of their capabilities and so on that frankly gives us a path out? having accomplished our objectives. so the idea, there isn't a developing country and particularly one anywhere near as poor as afghanistan in the world that delivers services outside the capitol.

there isn't a government like that that isn't corrupt. so how do we -- how do we establish objectives that allow us to accomplish our national security objectives within the framework of the reality of the history and culture of afghanistan. and at the same time, help begin to build the relationship with them that we have with dozens of other developing countries that will last long after 2014 in terms of having -- helping them modernize and develop some of these capabilities. but figuring out how to balance what our objectives are and what we actually need to do in afghanistan is one the things that i frankly think this administration has done a better job of than i've seen during the entirety of the afghan war. >> thank you, mr. chairman.

gentleman, good morning. "the new york times" reported last week and talked about a secret report ordered by the president back in august what fell under the rue bream of presidential study, relative to identifying potential arab uprising. >> actually, i saw that story. i asked the question about the report. it was a draft, never went anywhere. so it never happened. >> fair to say whether it was ordered by the president i assume the joint chiefs and the secretary of defense have ready for justified every contingency. >> every crisis. is that fair to say? >> yes. that affects -- let's say the mediterranean, what's happening in libya. we look very hard. >> each and every day. >> at the future as best as we can. we as the secretaries point out

more than once our ability to predict historically has been pretty lousy. certainly we have been concerned about what has been, i guess, building in the middle east over time. specifically, but i don't think anybody predicted the the -- wht would cause it and when it would happen and the speed. >> you know, some people attribute it, i don't know whether you it call it an intelligence failure, that we didn't know the depth of what was going on in egypt and libya. i have to say when i run back into my constituents, they say, well, it's just about every other nation was able to evacuate the citizens on a relative timely basis. where were our -- why weren't we able to upload american citizens? on a more timely basis? >> i think we got them out pretty fast. >> yeah, but other countries were there, the chinese were there, koreans were there, there

were a lot of evacuations. >> judgment of when to evacuate is a decision in the united states that is made by the ambassador when the time -- when they believe the situation has reached a point where they want american -- they believe that there should be ordered departures of americans. that's the timing of that is up to the ambassador. so the chinese and the others may have just made that decision locally earlier. >> did we have assets in the area to evacuate citizens on a more expeditious basis? >> well, the statement department. >> apparently we did. >> the state department's view was that the most expeditious and least provocative way was to lease the ferry that took most of the americans out. we also took a number of british citizens on that ferry as the british flew out some americans on one of their flights. >> relative to libya, a lot of pressure building here for

establishing a no-fly zone. i mean i often tell my constituents we're fighting two wars in the middle east and we are fully occupied there. what do you think is the likely scenario in that regard? >> well, if it's ordered, we can do it. but the reality is -- and people -- there's a lot of, frankly, lose talk about some of these military options. let's just call a spade a spade. a no-fly zone beginning with an attack on libya to destroy the air defenses. that's the way you do a no-fly zone. then you can fly planes around the country and not worry about our guys being shot down. but that's the way it starts. >> i'm not endorsing it. >> no, i understand. and it also requires more airplanes than you would find on a single aircraft carrier. so it is a big operation, and in

a big country. >> where we have those aircrafts, obviously, are committed to other missions. we would have to redirect them from wherefore they are to participate? >> yes. >> libyans have liabilities themselves? >> if you are going to do that, we have to assume it's very capable. we know something about their readiness. you have to assume it's capable unless proven otherwise. we have also seen and not been able to confirm that any of the libyan aircraft have fired on their own people. there has been reports of that. we have been unable through this morning to confirm that's actually happened. >> i'm not endorsing it. i'm just saying there is sort of a preacception here that we are

the only ones that can do it. we would have to take out the libyan assets? >> yes. >> it would be what some on the ground would suggest an action, somewhat, you know, a war. aggressive action on our part. >> well, at this point, the u.n. security council resolution of last week provides no authorization for the use of force. >> okay. thank you very much. >> thank you. i will address my first question to admiral mullen. before i start, i want to thank all of our panel today for your wonderful service and deep caring about our military and it's equipment and resources. admiral mullen, you have mentioned previously that diplomatic and foreign aide are just as vital as the military role in our overall success wordwide, in particular in