i know does. you're not going to pay to make a call outside the country. people download the skype app which is now owned by microsoft, and they use that. google, apple, microsoft, tons of over-the-top services so that it's a major factor in this industry. companies like light squared and clearwire that sprint controls, in fact, along with the cable companies. when we talk about sprint, we're talking about a complicated company in terms of its ownership and how it interacts with clearwire and light squared. just like the wi-fi in somebody's house being good for 300 feet, it's good for, you know, a quarter of a mile. not as much as a cell tower, but something like that. and these technologies are coming as well. so that's number one. they defined the industry as if it was voice, and the industry's not voice. the industry going forward is almost all data, and even voice

is data as we know here. so they got the industry wrong, that's the first problem, defining it as if it was a voice competition in terms of carrying a call. the second thing is unlike when they reviewed the verizon/alltel merger where they specifically said that while there are national networks, the decision as a consumer is a local decision. and so when you look at key cities across the u.s. and you look at the order of, say, the top six or seven, there's more than four choices, there's at least six or seven in most markets. you see that the correlation from one city to another is not that high. so you might see a verizon, you know, number one in, you know, 0 of the top -- 30 of the top 100 cities, probably more than that in verizon's case as the largest provider. but when you go down the line even to the first five, they're not going to correlate very highly because they're going to be different in different markets. in this case unlike the alltel

case, the justice department said we're looking at four national companies, we're going to rule this way because we want to keep four national companies. well, in fact, you do have national networks, true, but you have local markets that are easy to disrupt based on price, roaming agreements, etc. so those are the two big things we would say they got wrong. the third thing is the public policy issues, including jobs. we're supposed to say that jobs trumpsering. it -- trumps everything. it truly didn't in this case. the economic development that's going nowhere in rural america was we're not getting high-speed internet, and the economic development is frozen all across the country. >> host: mr. cohen, do you know if you would be opposed if this were a sprint/t-mobile mergersome. >> guest: well, again, it would fend. the two main things we cared about, jobs, moved out of the

country and so first would be jobbed and second would be broadband buildout. financially, they're in no position to do that. they've got a highly complex financial structure. we wish them well, i mean, they do have the cable companies backing them, time warner and comcast, so, you know, we don't see a duopoly danger, again, commenting on something i heard a few minutes ago here. because it's not in the interests of comcast, time warner, let alone the sprint owners to see sprint go away. verizon's not buying sprint, some people talked about that. verizon has their hands full. it's a come combination of void vodafone, that's enough for them to untangle. there's no way verizon is going to focus on buying up sprint. so, you know, these are the issues that we see as sort of underlying all of this. and to your question about, about sprint/t-mobile, we would

see it as a very troubled merger in terms of public interest questions. and also, you know, obviously, our number one thing is workers and employees and employee rights, and the sprint record look up the family connection. this is where sprint right before a national labor relations board election closed the center, offshored the work, moved the work out of the country -- >> host: in san francisco. >> guest: in san francisco, exactly. 400 workers, mostly latinos, lost their jobs when that center was closed. >> host: and we have time for one more question from juliana gruenwald. >> host: the obama administration's decision to fight this merger has political consequences for the president and democrats who are often your allies. >> guest: yeah. i think it does have political aspects to it. again, the question is, here's the justice department. the white house would say they're only looking at numbers. well, yet there was a policy

decision to look at national networks instead of local. the president has had a policy for be two years really to rural buildout, so, yeah, we are concerned that if we say one thing, rural buildout, rural buildout, rural buildout and then when we have a chance to get it and we ignore it, i think it's a problem. >> host: this is "the communicators," and larry cohen of the communication workers of america has been our second guest today. we will continue to follow this issue on "the communicators." c-span.org/communicators is our web site. mr. cohen, ms. grunewald, thank you very much. >> guest: thank you. ..

>> one of the best of speakers at this time in the first politician to campaign from the

backs of railroad cars and automobiles, ran for president three times and lost by the changed political history. he's one of the 14 men featured in c-span's new weekly series, the contenders. life from fairview, friday at eight eastern. learn more about the series in our upcoming programs at c-span.org/thecontenders. >> palestinian authority president mahmoud abbas and as he will submit an application for full u.n. membership. for palestinian statehood. home in his address to the u.n. general assembly meeting later this week. in a speech to palestinian leaders, he talked about his people's right to statehood and the failure of negotiations with israel. the u.s. has said it will veto the palestinian resolution and urge his direct negotiations to achieve a two-state solution. is 25 minute program is courtesy of al-jazeera english and palestine state tv.

[speaking in native tongue] >> translator: in the name of all, brothers and sisters, sons and daughters of the palestinian people inside the territory and outside the palestinian territories, i am conveying to forgo to the united nations -- to the united nations to convey and to tell them about the slaughter and bad, bad ground we're living in generation after generation, under the occupation and in the camps, refugee camps, where they are deprived of their country as their nation. they have their rights violated

everyday in front of the world, before the world. the world to establish the united nations and its agency to protect the peoples rights, and to prevent the occupation by force. the tragedy of our people, the united nations was born as well. hundreds of revolutions by the general assembly of the security council. but these resolutions were in vain. we go to the united nations to demand full and legal rights, which is the full membership of the state in this organization. we convey with our palestinian delegation, our people to achieve this goal and to put in

and to the slaughter. and we enjoy our rights, enjoy our freedom and independence in the palestinian state on the borders of both of june 1967 with jerusalem, if jerusalem as the capital as our nation. our efforts, our continuous efforts as to reach through negotiations a solution to end the occupation and to lead to the establishment of an independent palestinian state is now reaching had longer. because of the policy of the israeli government that is rejecting, negotiations on the basis of the international legal resolutions and signed with the plo, and it's a policy of

settlements as the jewish approach to jerusalem will never lead to the solution of the two countries based on the 1967 border. i will go to the united nations with big hope to have and gained this membership of our state. and this will never -- being the legal only and soldier of the palestinian people, and which will stay and hezbollah will be there until we have our foot and comprehensive independence. if we are loans day, the role of the plo will be there into we have a full independent and to have, and to have the issue of

solving all these problems and issues, on top of which is the issue of. [applause] [speaking in native tongue] >> translator: and, of course, as you know, the plo is the higher in supreme power of the palestinian people. the palestinian liberation of authority is part of the plo and disestablished with support of the plo. that's why everyone wants to talk about the plo and how we lose the plo, doesn't know and it's not a proper point. the plo will be there, not until we reach a solution, but until implementation of a solution. and much of the issue that we need to be implemented and a way to be implemented, the issue of

the refugees. [applause] >> translator[speaking in nativ] >> translator: sisters and brothers, we have expressed to take part in serious negotiations, and responded to the international mediation and efforts, that we received nothing from the israeli government except wasting time and imposing facts on the ground and turn into negotiation for the sake of negotiation. and during the last two years we have expressed and we have established institutions our culture, and the whole world and international have witnessed the success of our efforts, and how we deserve independence. therefore, one reporter issued

this month has praised the jobs and efforts by the pla and its domain, especially in security, justice and economic development and revenues, and offering services to the palestinians. and the report praised the achievement and considered achievement as real progress, that goes beyond the level of the opposition in the middle east and north africa and elsewhere. [applause] [speaking in native tongue] >> translator: this is one of the most important reasons that make us ready to talk about september, and the efforts of september. and we said for three reasons,

first, obama himself says i need to see a palestinian state next september with full membership. second, the quartet said it's a must to start negotiations in september. and in september, three, we said we are committing ourselves to establish palestinian authority agencies with full capacities that can be served national state and dependent state. then we had the world bank reported, not from a charity, from air of agency. the world bank said that we have which is better than other have. and the recognition of a palestinian state this year and the numbers who recognize goes beyond 106 countries. [applause] [speaking in native tongue]

>> translator: it's another indication that says how the world is sympathizing with us and with the aspirations of the palestinian people, and they are trying to an independent state, sovereign independent state. the majority of the world, two-thirds of the world recognized the palestinian state. the other third recognized but doesn't want to give us an embassy. we are the only people worldwide that is still under occupation. there is no island our area isolated, every part of the world had its own flag and as it's state of the united nations but the palestinian people. and asking why? why today? a democratic state that guarantees individual freedom, the collective freedoms, the commitments to the human rights

and women rights, and the principle of the transparency and the dominance. we have everything. democracy, freedom, we have everything. that's why we don't think that anyone will say our people wants to. [applause] [speaking in native tongue] >> translator: so we have one issue. steel we have one issue. -- still we have one issue. we need to have a full membership within the borders of the 1967 to be able to go to negotiations on bases adopted by the world through which we can negotiate regarding the permanent situation, jerusalem refugees, border security, and

our prisoners in the israeli prisons. [applause] [speaking in native tongue] >> translator: because at that time there will be war prisoners at the state. they are not terrorists. they are not criminals. they are, at that time they will be considered war prisoners, and we always consider them at the top of our demands. but all these will be tackled and will be discussed. that's what i am saying a lot of my brothers say, it's a jump on air. it's a lateral move. but yet from outside, it's a lateral step. and lateral step are talking to 193 countries, and you consider it and you called it unilateral

step, or a jump on air. okay, it gets you lateral, okay, unilateral. that's why, i said this is not right. we also have to understand we are not going there to bring independence. we are not maximizing, not minimizing. we will come back to negotiate the other issues. but we need -- we need to have full membership in the united nations. [applause] [speaking in native tongue] >> translator: but i hope not to maximize things and we say we're going back with independence. no, no, no. this is not the case. we need to pay attention. we need to be careful. those who say you are going for nonsense are not right. it does is ever going to bring independence are not right as well. either. that's why we need to deal with

matters as they are. we need to be logic. we need to work within logic. we are going to the united nations to put the world before its responsibilities with an olive branch in our hands. the olive branch that is carried out by the late leader yasser arafat, 36 years ago. [applause] [speaking in native tongue] >> translator: and not as something to say in order to isolate israel, or to take the legal status of the country. no, we're not going to isolate israel by taking a legal status to israel, israel is dead. no one can take its legal status or deprive it of its legal

status. it's a recognized country. no one can isolate, but we need to isolate the policies of israel. and we need to take the legal status of occupation, not of israel. what we need is to put an end to the occupation and to take the occupation, because the occupation practices, the pain that we suffer every day. these practices, storming intention and destroying houses, and increasing the settlement policies and the aggression of the settlers when they burn, the countries, they burn mosques and then they trained dogs, am i right? they trained dogs to attack us. and base in the pigs -- and they

send pics to stay in the land. they are facing us with three things. the settlers, the settlers always attack us. the dogs that are well-trained be careful. dogs are well-trained, and pigs to take. what is this? [applause] [speaking in native tongue] >> translator: and, of course, the tanks, the new invention of the israelis. to face the citizens when they are going and here the citizens go to the united nations, suffering should come to an end. and not deprive ourselves from our legal rights, because there's a lot of insecurity in the area. these aggressions reminded us today of what happened in the

massacre, and before that, there were massacres and others and others, but today, and today we all remember in 1982 the massacre where we lost thousands of palestinians. we are there for massacres, 63 years in massacres. i think it is time for us to feel, residents to feel honored, to go to united nations, support by the almighty and supported by the will of our people. our people that offered a lot for these nations and allowed to live in a good way and would also go to the u.n., supported by the sacrifices of our martyrs. our martyrs. our martyrs.

[applause] [speaking in native tongue] >> translator: without those martyrs we can never reach this point. and our prisoners. [applause] [speaking in native tongue] >> translator: and supported by our arab and islamic world, and the whole world, love peace. a lot of people deserve our support. people from africa, from asia, from everywhere. people are supporting us, and a lot of people are coming to say, we will recognize a palestinian state, despite the fact they are miles, thousands of miles away from us. and let me be very frank with you. we are facing an important and historical mission. it's not a picnic. we cannot minimize the obstacles. we need to be keen to achieve

our objectives, our goal through logic and their efforts. and if it's a success, then we need to know that the next day, the palestinian state will unite. our struggle will continue, and the mission, the next mission will be also difficult, but at least we got the independence. we got some of the recognition of the world, and we know our land is occupied and it's not a disputed land as the israeli government said. we don't recognize 1979 borders, that's why where ever we can reach, i've served this since 1948, said the more our soldiers go, then we will go. this is our borders.

our borders is where we put our faith. do we put our feet is our border. no, no. this is an occupied territory. 1967, settlement is not legal since the establishment of the state of israel. [applause] [speaking in native tongue] >> translator: negotiations are for that. despite whatever the difficulties are, it's negotiation between two states, an occupied one and an occupation one. i'm talking very frankly. i promise you that the result that will be achieved whatsoever the result might be will be given to our institutions as to take the proper position regarding this result. go to the benighted nations is not the -- united nations, it's part of the palestinian strategy with the aim of regaining palestine, jerusalem is its

capital on the borders of 1967. we need our country to go back to the geographic map through negotiations. and with the public of international legitimacy. i refer to our people here and outside come in the camps and everywhere that adhere to our principles, and i call upon everyone to commit himself and to abide by the values of the struggle and the value of not giving anyone to protect or touch our legal struggle and conflict to have an international resolution that recognizes our state with jerusalem as its capital. today in these days, we are facing an important stage, and our people will prove, as are people have proved previously, it's of the people are able to

overcome such test. unified on the ground supported by the political powers, and to stress that he is a peaceful people and nation inside and outside, all the movements should be peaceful. because the israeli intelligence said we'd never heard a word peaceful from mahmoud abbas. never said peaceful. okay, i am announcing peaceful. so common we need to be moving in a peaceful way. we need to avoid as much as we can to be trapped into their positions. and they want us to be. we need to be peaceful. we need to go back to they want this. i hope, i urge every

palestinian, female and female ago tomorrow somewhere, we need to be aware. don't give them that chance. don't give them that protect. we want, we need a state. we need a seat at the united nations. now, any violation of the peaceful movement of us will not go into our benefits and will destroy our efforts and will shed light on the negative points and other positive point. i also want to say that the palestinian interest is the palestinian unity. put an end to division that happened in 2007. we will continue. we will go on. we will assert every possible effort to achieve the reconciliation that we consider

as strategic and national aim and goal. what we have done regarding will continue. we will continue. even if we have some differenc differences, the unity of the palestinians, the unity of the land is the most powerful weapon that we have. and we need to say no to everyone who wants to say that the palestinians differences are the main obstacle. we need to get rid of this division. and here as well as the heads of my speech, want to thank all the arab countries and all the agencies that support us, in our full membership in the united nations. we are going to the security council.

[applause] [speaking in native tongue] >> translator: oh, you can't believe that? [applause] [speaking in native tongue] >> translator: please sit down. i'm sure you don't believe that. our decision that reset to everyone, we're going to the security council.

>> i'd like to thank google for their generous speed is former senate majority leader tom daschle and former white house chief of staff andrew card truly co-chaired the task force for the council on foreign relations on trade investment policy. this morning that we talking about the recommendations on new strategies to create jobs and create wages to the report is expected to address the decision. live coverage on c-span2. it is just getting under way. >> had all the news that the

council formulations and was codirector of the task force and matt slaughter who is also a co-chair of the task force. what we will do this morning is, i'm going to ask questions, particularly of mr. daschle and mr. card for about half an hour and then we'll open it up to questions. i promise you that we will not spoil the report by telling you everything that is in it. so i think they're giving away free copies. feel free to read it. let me start with one big question if i may, mr. card and mr. daschle. the report quite eloquently says this. the growth of global trade and investment has brought significant benefits to the united states and the rest of the world. free trade and investment facilitated by rule of the u.s. and implementing, have alleviated poverty, raise average standards of living, and discouraged conflict. now, it seems to me that there's an awful lot of americans are not convinced that global trade

and investment has brought significant benefits to them. they think it's actually hurting them. so i'm curious, what do you say to them to convince them that this is really in their interest, not only in the interests of big u.s. multinationals? >> david, i guess i would start by simply saying we have to ask what would happen have we not done these things? the world is going through a most transformational moment, is changing dramatically, becoming far more integrated, far more interrelated. we recognize that the real developing markets for the products that we produce and the services we provide are in the developing continents of africa and latin america and asia. and so as we recognize this transformational moment we also have to recognize that there are things we have to do to engage with the world in order to ensure that our economy stays strong. we also in the report notes that there are a lot of things we could do better. we could do a lot better with

enforcement than we do today. we probably could do a lot better with regard to training our workers, to cope with these transformational circumstances than we do today. so we recognize that there are many, many challenges out there, but the world is changing. we need to adapt as the world changes to suit the workers and the needs of our country. >> we find that multinational corporations actually have a disproportionately large growth factor when it comes to workers in the united states. they've been adding jobs in the united states even as they have been expanding market opportunities around the world and that's a good sign. we've been a magnet for direct investment, but that is challenge right now with a wor world. this report is not written to be the perfect answer. if you're looking for perfection you should probably go to an academic institution. they give you perfection. >> or church. >> this is an effort to describe what we think is needed, and it

is a practical recognition of the challenge on free trade between the old debate of what perfect would look like ending the debate debate is what about me? so this is a balance between the theoretical, provider of free trade, and the practicality of we need to do more for the american worker. and to demonstrate that the ground rules are there, the united states is going to be a partner in making sure people play by the rules. and so this is an effort to recognize political climate as well as the economic climate and the reality that the world has changed, and we don't have, we don't have permission to be the exclusive carriers of economic growth over the world, and we don't have permission to be isolationists. we're going to participate in the global economy, and we think this is a roadmap for more realistic participation. we are pro-american interests. we are not going to conflict

with the theoretical expectation of an open market. >> senator, as you know, the report argues that there are lots of ways in which trade and foreign investment in the united states and u.s. investment abroad are ultimately good for the united states. but my gut instinct is if he took up all of the democrats in congress, you might have trouble getting a majority for the proposition. so what do you say to them? why is this really in america's interest, not just in corporate america's interest? >> i think if you look at where we are, our softest today with regard to the economy, it's the expectation of how we're going to grow jobs. one of the major takeaways of this report and our study over the last year has been that we really need a much more aggressive proactive, pro-american investment policy. and that investment policy really has a couple of components. it's encouraging foreign

investment into the united states as we see already in many other parts of the world. something we have done every good job of incurring. but it also means encouraging american investors and american manufacturers to also invest in america. and building the kind of partnerships to do that is really what will go jobs in the long term. we're going to hear a lot of debate over the next several months about how we grow jobs. we think there is a significant trade component. how to do it investment, related directly to job growth in this country, that we need to focus on. we will get this job done right. >> mr. card, you mentioned the report picks up on the fact that not all workers benefit from trade, and it suggests there are government policies that could be used to share the benefits of trade more broadly to the report for instance, calls for this thing called wage insurance which is a way of compensating workers who may lose a highways job because they are one of the losers in trade.

yet in the exceptions to report in the back, the commentary, both trent lott and bill thomas object to that. so, what do you say to republicans like bill thomas and trent lott or the republicans on the hill now who are an easy buttocks extending the program, is that really important? are they rights because i think they are right in the context of global context of spending it and i think with regard to the united states, they are saying put that in the same priority of consideration that everything else will be in wind is deficit reduction commission needs to say how do you spend money i think there are benefits for free trade and that the benefits can be shared with people who will be dislocated come it's not bad. but i'm not just for spending spending spending. i'm doing in the context of the overall federal discipline that has to come in spending. i don't disagree with their

angst. i did disagree with their reservation. because i think they put together a plan that was practical from a political point of view as well. so i think there is some recognition that there are going to be adjustments that will be needed to address people who are on the cusp of angst because we are in a free trade, jeopardize position. so that's what i favor, and i did talk with both senator lott and former chairman ways of means bill thomas. i completely understand their angst, but when it is discussed in the context of overall spending i think we can find a way to show that if benefits are going to be real from free trade than some of those benefits should mitigate the concerns of the workers who are displaced. >> i think the two were to emphasize here are so critical. and that his political practicality of the political practicality in today's world, david, dictates we understand the importance of trade

adjustment assistance, if we are in favor of a robust trade policy. they go hand in glove. you can't have one without the other. >> i should say that matt and ted are not required to remain silent. we agreed they were mostly go about the q&a. didn't want you to think there were assigned to just not every time. [laughter] >> kick me every once in a while. >> computer decade ago when the formulations of the report on trade, one thing that is could give it is the role of china. and so, what does the report have to tell us about what we have to fear from china, will we have to gain from china, and most important what role does our government play in making sure that china plays either trade rules that we played by? >> well, first of all the reality of china's growth is, so are some of the problems in china. i would like to see and i support the administration's effort to have them be more

responsible about how their currency is traded around the world what level it has indeed taking the value back to china. i also am very concerned about intellectual property. i also think it's a reality of self initiation by the u.s. government has not been very present with violation. we counted on corporations and businesses to come forward with their concerns, and they are increasingly reluctant to raise a level of concern to the federal government and and i think federal government should be more active or more proactive in calling attention to violations and where the rules are not being respected. to this report also calls for our government to be self initiating when it comes to some of the violation. >> not be willing to stand up for itself? >> retaliation. i think they're concerned a lot about retaliation and the affect

-- >> by the chinese government? >> by the chinese government. to your question, i think it's a very appropriate, important question. if i had to categorize the report, it would be in for ways. there are four major takeaways, all of them apply to china. the first is we ought to have a much more proactive trade policy. we ought to be focus on those countries that really could produce some real results in china, india, brazil are three good examples. so clearly as we target where we can do the most good with trade, china is a major factor. the second is investment policy. we got to have an investment policy that recognizes the importance of bilateral relationships and encouraging more investment. china is one of those major players where we could make a big difference. the third is enforcement. we've got to do a better job of enforcement. what better country to demonstrate we can do a better job of enforcement as andy said, then china. they need to recognize we've got to love our workers.

that especially relates to china because we are being hurt in some ways by the bilateral relationship we've got today. so all for takeaways apply in a very significant and consequential way to china. >> so in the report you talk about as one of your recommendations, and national investment initiative to coordinate investment policies to create more highway high productivity jobs in the united states. what does that mean in reality? what do we not doing to encourage investment? >> first of all it means all of our investment in the united states should have an eye towards competitiveness. how are we going to remain competitive with the rest of the world, as it has become increasingly competitive to us. so we need to have more investment in our infrastructure greek we need of more investment in education. this is a recognition that the united states alone is not going to be the engine that drives all economic activity around the world. and we've got to be more competitive and we are asking

for an investment in our infrastructure and our education so that we will be very competitive with the world, that is increasingly competitive against us. >> can i add one thing? we saw in the report and national investment initiative would be complementary to the administration's national export initiative, that a lot of what this report is about is attracting investment in the united states that is related to export markets. and the united states just has never done this in a systematic way. most countries have national level investment promotion efforts where they are looking overseas to bring in companies to get them to invest in the united states, to retain the investment. we don't do that at a national level. we talk you about tax policy, about the way in which our corporate taxes really is an outlier, discourages investment in the united states. and we talked to senator daschle mentioned, china and developing

country. so this is, the goal here is to have some complementary to the national export initiative to say trade and investment are intimately linked. and as we're promoting exports we need to be promoting foreign investment. and more broadly -- >> drawing more foreign companies to invest in the united states. making us feel welcome. >> to try to have a set of policies in place in united states allow, to connect with jobs bill in america as well. so it's thinking about all global engage companies in america, trying to allow them whatever, to have their ability to have in dynamic growth markets like china and others to transit back to jobs and rising incomes here. >> you talked in a report about approval of the german chancellor angela merkel and the french president sarkozy being kind of better soundman for the export industries and american presidents have been. i want to ask you a bit about that.

so the governments are much closer to businesses and relationship between government and businesses different here. and most of the time the rhetoric of business in america is stay out of my business and i will stay out of yours. so can you imagine, should the president of the united states, whether it is a republican or democrat, the spending more time beating on the chinese to buy boeing jets or beating on the germans to bite microsoft software? is that what you think will have an? >> no, i wouldn't say beating on them. certainly the right word i would use. i do think creating a greater and a closer and more successful partnership, as a look at the international competitiveness is something we should do. i think it's a good thing. i also think we've got to do a better job of linking jobs with this whole effort. you know, that's what i think we failed to do is we haven't really made the case about how

jobs can be effected, and how we can build a jobs agenda around doing a better job of selling ourselves to the world. that's partly is what this is all about. recognizing that huge amount of rhetoric that has to be considered as we make our case. that hasn't been addressed very effectively in the past years. >> i remember that presidents of the united states, they don't not push for u.s. exports. but it's kind of done with a bit of awkwardness like we ought not to be too mercenary about this because we are the united states of america. is that a problem or is that a good thing? i'm not sure. >> i don't think it's a problem. we've had presidents of the estates have been unabashedly championing, i'm going to say u.s. corporations who have competed against foreign corporations. it's when they're competing against other u.s. corporations that they don't get engage. they just want the playing field as level as possible and they

want the rules of trade to be respected on all sides. and i think that's what we're asking the federal government to do here is to be proactive in making sure that the rules that are there are the rules that are enforced. we are not going to count on our corporations all of the time to be the ones to say hey, they are breaking the rules. we have our own ability to see whether or not the rules are being broken and we should step up and call attention to it. but yes, we want a pro-american trade policy. and that's what this is saying. i don't think it's inconsistent with the fact that the united states is the best example of the free market system, and we want to spread free market systems around the world but we will do it, recognizing that our free market system is great because it does have the rule of law. and it is enforcement and we will make sure that spreads across every border in the world. >> now, the way america taxes corporations is of course quite controversial at the moment, and where the only country in the

world that tries to tax everybody's profits, no matter where they are in the world, while other countries should try to tax only the profits earned in the country. and there's a great consensus now in congress that we have tax reform. as long as you don't try to find out what it is they're talking about. you talk a bit about taxes in the report but i wanted to see to talk about how do we think about corporate tax reform in the context of a trade and investment? >> first of all i think it is a recognition that tax policy has a huge influence on our success and international trade, and competitiveness. and so we've got to look at it from that perspective. we have created a whole range of incentives to do different things, but the bottom line is we still have a very high tax rate as it relates to other parts of the world in business. so recognizing bad and creating a greater equilibrium, a fair and more competitive tax climate is something i think both

democrats and republicans, this administration and congress, in spite of all the polarization to see about taxes, seem to agree. >> i feel very strongly that you cannot do trade debate without talking about taxes. this report acknowledges that reality. we heard from a number of business leaders. in fact, every business leader we spoke to, the tax policies have a greater impact on some of the trade policies than the theory of trade. and we'd like to call to the attention of congress as they take a look at tax policy, to pay attention to what's happening in the global competitiveness, how does it impact our ability to compete overseas and to keep jobs at home or attract new jobs and more investment here? but we put some pretty controversial suggestions in here with regard to the tax debate that congress will have to laugh. it's not in the context of a trade bill. it's in the context of a tax bill have to be written but we

don't want a tax bill written without paying attention to the ramifications on international trade. >> you talk also in the bill a little bit about the process of getting trade legislation through congress. once upon a time to make it better we set up a process that the president would propose in congress would amend and it would all happen in 30 days. 30 days seems a stretch to 300 days in 3000 days. free trade agreement, some countries which are about the size of providence, rhode island. so how would you propose to make the trade legislation process different? >> first of all i guess we, as andy said, if we tried to write a perfect document, you would probably write a perfectly with which to deal with trade legislation and the congress. that isn't going to happen. i think speed is nobody thinks congress is going to -- nobody thinks congress is perfect. that's the problem. [laughter] >> but i think we've come with

the realization that t-pa, trade promotion authority, legislative avenues are not something that a very realistic today. so we have to look at ways in which to address these agreements outside that context. making the case that on a bilateral basis with countries that support as brazil and india and china, that on that basis alone we ought to be able to find consensus on some of the most important priorities and aspects relating to trade with those countries. we are not going to create a framework within which all these things can be done. as andy said, the program started, there's no one size fits all approach as we go forward. we have to recognize that today. >> trade promotion authority would be great in a perfect world. the reality is congress is not likely to approve trade promotion authority, and even if they did it would probably be strings on it that might mean it wasn't really trade promotion

authority. so this is an acknowledgment of the reality of the political climate today. i thought for trade promotion authority when i worked in government. i advocated it was working in the private sector, and yes i've lobbied to pass trade promotion authority and i thought it was a great tool for president to have. it's just not likely to be given now. and the one thing about this report is that it's just that they should be strategic considerations with regard to trade. so we are suggesting, take a look at the unique challenges of china or brazil or india. and deal with them, and it used to be you would take your cookie cutter out and poke into the world and bingo, which show columbia, perfect example. we don't have a cookie cutter anymore. we have to deal market to market, reality to reality. and that is also in the context of the political response that

congress gives. >> and we have done it before. we've had examples where we have been able to do this. i think we have to go back and find what worked in the past outside of tpa and use those principles and experiences again. >> i would love congress to get tpa to the president of the united states. i think it's an appropriate response to article ii's responsibility. i don't think congress is going to do it though. >> just had one thing to be clear on the debate we had. there was broad agreement in the best of all possible worlds, trade promotion authority for the president makes sense but it's a good thing. will be wanted to avoid was a big ideological battle over in theory does the u.s. want to go forward with more trade agreements. that makes both sides hardened into position to hear what we're saying is go out there and present to the congress specific deals that the administration can bring home. i mean, the administration is probably going to need tpa and the context of the partnership that be negotiated but if you can go to members of congress

and explain what tpa is. >> it allows for a fast-track procedure through congress so builds cannot be amended and such a pixie don't get into the game of congress amending trade deals after they are negotiated. some will end up there anyway with korea and panama. >> we were like congress to pass -- negotiate. i think it's easier if you have tangible, if you tangible agreements that you present him as of congress and say here's what your grant of trade promotion authority disagreement is going to mean. and try to build up confidence in that way. >> let me turn now to what you think ceos of big companies ought to do and say. you know, in the '90s big companies, multinationals created about two jobs overseas for every job they created here are in the 2000s they didn't. they increase their employment overseas by about 2.4 million, and decrease their workforces in the u.s. by 2.9 million.

what is the responsibility of the ceos, the 100 largest multinational companies, in terms of talking to the government, talking to the people about trade and what should they bring to the table? >> i think they should, they should bring to the table, we have to be competitive in the world. help us be competitive in the world. and yes our government should say what are you going to do for us. and i think they have some suggestions. sometimes the rules of the game don't allow them to add as much value to the united states as they would like to. at the competitive challenges require them to make sacrifices at home for their shareholders return on investments. so i think it is a challenge. we heard, jim owens is the best example. he is out there -- >> former ceo. >> yes out there working very, very, very and has been working very hard, not only to provide jobs in america but to meet the

challenges that consumers have a around the globe. and he's done it well. but he said we were tying his hands quickly. sometimes it was our tax code. sometimes it was a lack of infrastructure in the united states that allowed him to be competitive, but he found a way to do it. so we listen to them. listen to the practical challenges he had to face as he was competing around the world, and is very, very sincere desire to add value here at home. >> i think, i think ceos have the same responsibility that public officeholders have, which is to do what this report calls for. and that is pretty attention and the focus where the american people really want to hear, what they think it should become and that's on jobs. what are ceos doing to do a better job than we have done in recent years on creating jobs here at home? what our policymakers doing? how can they work together? what are the incentives? what kind of infrastructure do we need to ensure that it is

profitable and it is rewarding for businesses to create those jobs right here at home? that's really what we've got to do is emphasize what it's going to take to fill those jobs here. the perception is all we are doing is building, creating those jobs abroad. we've got to bring them home but we've got to make sure people believe that it's a real priority and the highest element of our agenda when it comes to trade. >> i would just echo what tom and andy said. what they do most important is inform and educate. because they are the ones that are seen every week, every quarter how fast the changes are in the global economy, how the opportunities are growing. but how challenges the business dynamic is for have to go in those markets can hopefully in a way that connects with jobs here in the united states. like international taxes is a great example. go back to the '80s and '90s, relative to many countries the united states corporate tax cut was pretty summer to that of other

countries. the changes in dozens and dozens of countries in recent years to simplify their tax cut is made the u.s. more and more -- what it is tax on luxury property, they can guide the focus of how this effort to grow more jobs linked to the global economic. >> let me ask you one professional economic question. there's a striking quote in this report from its predecessor in 2001 report that was written by a task force chaired by bob rubin, the former treasury secretary and ken duberstein, the former republican white house staffer, which was ironically are interestingly directed by a little-known bureaucrat named tim geithner at the time. and in that report, 10 years ago, it was the gains in trade are broadly shared. ..

>> a deep set of forces that are at play. and, again, what's new in our report is saying this is an economic reality that we can build off of, hopefully, with a more innovative set of policies to allow more job growth and income growth linked to opportunities abroad because it's not coming as automatically as it did in the past. >> i would say, also, a recognition of reality in that government-owned entities around the world are increasingly

challenging our corporate structure to be competitive. and so how do we deal with that? our rules really weren't written with an expectation that government-owned entities would be the major competitors in some markets. so that's why we're saying the u.s. should be more proactive, and the u.s. government should be more proactive at looking to see whether or not the rules are being followed and that the playing field is as level as possible when you're out there competing to meet the demands of consumers around the world and provide jobs back at home. >> and that's why i think the american people expect the american government to be a lot more aggressive when it comes to enforcement than we've been in the last ten years. if there is one word that i think concerns them the most, it's that, it's enforcement. why don't you go more, be more aggressive and be more successful in taking on the lack of competitive fairness as you look at some of these markets because of state-owned enterprise especially. >> okay. we're going to turn to questions

now. i had thought we could skip the usual washington warning to turn off your cell phones, and we did pretty good for the first 29 minutes. [laughter] i want to remind you that this is on the record, so if you speak be, you will be on the record, and there's a c-span camera there. please, wait for the microphone and use it. please, say who you are, and remember that questions end with a question mark. [laughter] so who's got the mic? want to start it right here in the front? >> hi, good morning, paula stern. um, thank you. my question goes to both of y'all, thank you so much for your presentation. with regard to china and with regard to the issues of enforcement of our trade laws and our obligations and those of china under the wto, and specifically with regards to the green tech arena which is so

important particularly to this administration's initiatives. we have been treated to brasher's article about volt, the gm and ford seeing differently how to deal with china with regard to, um, the requirements, i guess you would say, of the government of china, um, regarding tech transfer as a condition of those two automotive industries invest anything china and enjoying the chinese market. you suggested, mr. card, that when two different u.s. corporations may not see eye to eye on a particular policy, it makes it very difficult for the president, the administration to come forward actively with china. what would you suggest be done with regard to china given the

retaliation concerns that corporations have? is it the onus now on the u.s. government, and how does it resolve it when you get two different industries, particularly in an automotive area that's so important? >> you know something about cars, mr. card. >> well, first of all, i feel the united states should help all of our intellectual property be protected in the world, and so we should be proactive in the helping to protect the intellectual property that america has discovered and implemented. i also respect that sometimes there are corporate interests that don't mind sharing their intellectual property. and that is a business decision made company by company or corporation by corporation. i don't think there should be a blanket rule that says no intellectual property can ever be transferred to any other entity. that's a corporate decision, that's not a government decision. the government decision says we have an intellectual property law, and we're going to respect it, and we're going to make sure

that people around the world respect it and comply wit. so that would be the difference. so when it comes to gm and ford and how they might negotiate over intellectual property with a market, to me, that's for them to decide rather than for us to impose, but we should protect the overall intellectual property rights that exist for american companies. >> david, can i add one very small thing? >> sure. >> there are in the trade rules provisions that discourage performance requirements, that discourage countries from having to say you have to do x in our market in order to sell your product here. so there are rules there that the united states government can use to discourage things that may work against the development of these technologies in the united states. so that gets back to the question of enforcing the rules as they're written. i absolutely agree you can't have a blanket prohibition, but there are rules to discourage this sort of thing. >> thank you. steve at george washington university law school. i didn't hear anything this morning about buy american, and i didn't see it in a quick look at the report.

i did see a dissenting view at the end of the report endorsing buy american. so here's my question. last week the president sent up a jobs bill with section four, its centerpiece, demanding buy american for public works s. that something that -- is that something that the task force discussed? and why was it left out of the report if it was discussed? >> so i think it's mentioned, isn't it? >> briefly. >> briefly. [laughter] i'll offer my view as a task force member which is the complexity of the global economy makes buy-american type provisions more and more difficult to conceive of in measure, and i also think they're narrow-sighted trying to build millions and millions of jobs in the economies that trade in investment. other countries pay attention what our country tries to impose as requirements, and the reality is dynamic growth opportunities that our american workers need to tap into are more and more

outside of the u.s. borders. so i think those policies don't work well, and they invite retaliation. >> i would put it in a different context, actually, because we do put a lot of emphasis on what we call the pro-american approach. and there's a difference between pro-american and buy american, in my view, and that pro-american has a much broader array of approaches that would allow us to have a greater expectation of some result whether it's dealing with countries that can really make a difference in our trading relationships with china, brazil, india, whether it's investment policy, whether it's enforcement or trade adjustment assistance. all of those things are a bro-american -- pro-american approach that go way beyond just the buy america, more narrow focus that i think doesn't really lend itself to the kind of environment we're facing today. >> okay. we'll take one on this side. there's a gentleman here on the aisle. can you give him the mic? good morning, sir.

>> good morning. you mentioned about the investment initiative. what i -- do you recommend any incentives for both domestic and foreign investors in the united states? thank you. my question goes to both. >> i'm not sure i understood -- >> he wants to know do we offer -- do you recommend offering incentives to, you know, tax and other incentives to get people to informs -- invest here, correct? >> yeah, we don't look at targeted incentives, we're talking about setting up an environment that is attractive to foreign investors. >> we want to make sure we have a very attractive environment to bring in foreign investment. and return some of the profits that have come in the multi-national, multicorporate challenges, that we want more money to come back home because our tax laws look better. so in the context of the tax

debate, we'd like them to consider the global implications of taxes, not just the parochial interest of taxes. >> sir? >> thank you. stephen canter with the u.s. council for international business. this question is for matt and others about the national investment initiative. i don't think there's a governor who doesn't love inward investment. they have a parade, they celebrate, they throw money at them, they do all sorts of subsidies, but our inward investment is somebody else's outward investment. when they say put the plant in alabama, those workers get upset. so we have to establish linkages between outward investment and inward investment. the president's investment policy says nothing about outward investment and the linkages. so if you could say some more about that, how we focus and pull together the linkages of inward and outward. and also this context of keeping -- [inaudible] these growing markets where our competitors, mr. card, as you

noted, are state-owned enterprises. shouldn't we be pressing for serious disciplines on state-owned enterprises to have a level playing field? >> so great question, couple thoughts. one is distinctions between inward and outward investment get more and more blurry as global business gets more and more interconnected. so with ongoing rise of outward m&a transactions from a lot of brick and beyond countries, kind of the ownership changes more. so thinking about those distinctions as clean and permanent is not helpful. and on your second thought is, um, historically there's some academic research today that shows expansion abroad by u.s.-based multi-national companies, tends to support more activity back in the united states in terms of more job creation, more capital investment and a lot of fdi pulls investment into those foreign markets. now, the challenge, and i think a lot of the themes of our report is trying to thinking about what constellation we can

have this america to allow that to continue in the future, and that speaks to things we've been discussing like enforcement requirements in those foreign countries, protection of intellectual property. >> can i just respond quickly to the issue on state-owned interfreezes. -- enterprises. you're faced with a dilemma. the united states could, i suppose, say we're competing with these heavily subsidized enterprises, tax breaks and all sorts of advantages, we can match that, right? is we can try to match that. that's not going to happen in the current u.s. economy. it's a very difficult thing to do. >> right. >> far better to negotiate rules be they in the context of trade agreements, through the oecd, perhaps through the wto that begin to establish some common rules for what level of government intervention is permissible. difficult negotiation. i'm not pretending that that's easier, but we faced a lot of the same issues with japan in the 1980s and 1990s. so we have confronted this before, and i just don't think and the task force didn't think the united states can close its

eyes to this problem because it's a big and growing competitive challenge for our primary goal which is to see productive activity located in the united states. i mean, corporations will, you know, will move and will locate elsewhere if incentives require them to do that. and so we have to be able as a country to challenge that and continue to make the united states a good location for people investing -- >> if i may, i think it's important. people don't think, oh, that means no expansion abroad of any kind whether it's by u.s. domiciled corporations or foreign corporations. they're going to have those connections. the trick is to try to think about the set of policies to sport their ability to fast be growth abroad to mean more jobs and economic possibility here. that's the policy challenge. >> ma'am? >> susan lund from the mckenzie global institute. my question is about infrastructure investment. the u.s. needs all sorts of infrastructure investment, we need ports, airports, clean

tech, transportation. at the same time, we have foreign investors who are interested in helping fund u.s. infrastructure investment. however, in the past we've had a little bit of a skittish at -- attitude about foreigners investing in ports or energy sector. so i have several questions for you. one is do you think it's a good idea to try to attract foreign investment and infrastructure? two, if you do, do you see any sort of signs that u.s. attitudes towards such investment is changing, and if not, is there anything concrete that can be done to help facilitate this type of investment? >> well, i personally think that it's a very important part of our infrastructure, developmental investment policy that we ought to be encouraging it, and i'm hopeful that we're going to begin to see a greater and more proactive approach on the part of government officials in that regard. it seems to me it all comes down once again to this whole notion

of jobs and a recognition that because of the tremendous interreliance and interdependence that we have today, that those jobs are very real and that if that is the only way with which we're going to be able to see a really robust infrastructure development policy in this country, it seems to me that that's just a logical extension of what we've already seen in the past. so i would love to see much more of it. i think you probably at the end of the day will see more of it. >> but there seems to be resistance to whether it was dubai ports or a german company buying a phone company, all that stuff, how do can you talk people out of that fear that if foreigners buy our infrastructure, we'll lose control of our destiny? >> well, i think that's the word, control. to what extent can we create a framework to which control is still ours? that's really going to be the most important question. we want investment, we just

simply don't want to turn over the entire infrastructure management and portfolio to a foreign investor. so control is key, and i think -- but along with control is a recognition that we can manage these things well if we can do them that understanding. and the realization that good jobs, permanent jobs are going to be part of this investment. >> okay. >> i would echo the senator. we have a longstanding process in the united states from these inward transactions on infrastructure are met. but in terms of how you change public opinion, again, i think the narrative of jobs is really critical here. um, this is one of the things globalization has done in the past generation is around the world there's a lot of global best practice companies that operate in the infrastructure space. there's a lot of countries around the world that have built out their ability to fund and build and maintain infrastructure projects by relying on these companies. the more we can rely on those in america in an era of tight

fiscal environment, the better we're going to help job structure. >> as pushing for markets to be open for business, america wants to be open for business, and this report says that. we're looking to say, yes, we'd line to have your invest -- like to have your investment here. we do pay attention to governance, and we do have a process in place, but we're open for business. we're open for investment, and we want that investment to come because that means jobs. >> in the back? >> dan bob with the -- [inaudible] foundation. i had a question about trade promotion authority with respect to tpp. in the report you talk about, well, it's not terribly clear to me exactly what you're suggesting on trade promotion authority, and i wonder if you could address how specifically tpa could be granted to tpp because tpp is moving forward.

>> abcs here. [laughter] tpa is a trade promotion authority which allows the president to negotiate agreement and supposedly get it through congress on an up or down vote quickly. and tpp is the trans-pacific partnership which involves a, help me here, japan -- >> no, japan's not part of it. it's the united states and a number of southeast asian company countries, so vietnam and malaysia and others. i think the idea is to have the building blocks of a broader regional trade agreement. the u.s. is intensively involved in the these negotiations right now. the hope is for some major progress by the apec meeting which is in hawaii in november. >> does someone want to speak to the tpa and the tpp? >> can i take that one? >> i want to mention one thing. the tpp is being negotiated by ustr as though it has tpa. >> it is, yeah. yeah. no, i mean, i actually think we were pretty clear in the report. we didn't say, okay, obama add add -- administration, go out next week and ask for a broad

grant so you can do a whole bunch of deals because our fear is that then becomes another ideological battle over whether trade is good for the united states, and we've had too many of those. so what we've said is go out and ask in be the context of specific deals, and i think the trans-pacific partnership is a good example where the administration will be able to go to congress and say, look, we've got this deal we can bring home, here are the advantages it will bring to the united states. we think you, the congress, should grant us this vehicle to bring this deal home. >> so it's a sequencing question. work out the principles of the deal and then go to congress and get the negotiating authority rather than ask for the famous blank check. >> yeah. i think that's where we are. you wouldn't necessarily have to be this far along. the united states can go congress and say we want to do a deal with india like the european union is currently negotiating. these would be the broad parameters, give us the authority to go do that so that you're talking specifics rather than generalities. >> in the back.

>> bill lang with caterpillar. my boss formerly was jim owens, current one doug, and i have to say both remarkable leaders. and i was sort of taken by andy's comments because while it's absolutely true over the last 10, last 20 years we've increased u.s. employment pretty traumaticically we've increased non-u.s. employment equally dramatically. but at 36 years at caterpillar, and i've never been in a meeting where executives said the goal was to increase jobs, to reduce costs, to be safe, but never once has business folks gotten together and say i don't care about profits, i care ant creating jobs -- about creating jobs. but if you do the other objectives properly, you do create jobs. most of this discussion has been about jobs. do we make a mistake by leading with jobs rather than leading on what it takes to have a competitive economy and pointing out that jobs will follow? >> i don't think it's either/or,

frankly. what i, i think we've got to do is say how is it that we get to jobs? because i think jobs are uppermost on the minds of -- you know, i don't think most americans are necessarily as concerned about how much profit caterpillar makes as how much, ultimately, it means in jobs as a result of the profit that you do make. and so putting it in that context, it seems to me just recognizes the political reality today. until we can convince the vast majority of american people that a proactive, pro-american trade policy actually does mean better jobs and more jobs, i don't think we're ever going to get to first base on a trade policy today. so that's really what it is. it's not necessarily say anything differently than what those ceos talk about in that room, but it's putting it in the context of a message that the american people will hear and resonate. >> the context under which the

trade debate takes place today is in the context of jobs. and what does it mean for america. and that's why this is a pro-america plan, and, yes, we want every corporation in america to be competitive around the world. so we're looking for a very competitive environment around the world. but we're also asking, is that pro-competitive environment going to complement america's interest in creating jobs? and we think there is a balance. and we're not suggesting that any ceo should say my first job is to create jobs. i think their first job is to be competitive with the world, and jobs will come. so that's why when we met with the ceos of a number of companies, they talked about what it would mean to be competitive. and they want to be competitive in the united states. they want to be competitive as a global corporation, but they also want to be competitive in the united states against or with or in complement.

and so i think that's what the context is. we had a wonderful group of task force members, and i see carmen be down here, she's cheering us on, and we had a very, very healthy debate over a jobs priority or a competitive priority, and we said it's going to be a pro-america priority that includes competitiveness and we hope will have a complement to the creation of jobs in if america and stability in the job markets. >> and i would just add that, um, our, the it is task force ws great, we had a lot of rich conversation about what that competitiveness means for the ability of america to grow jobs, and i think the report strikes the right balance of saying trade investment policies to link competitive u.s. policies to the global economy is a piece of that, but that's interrelated to challenges like infrastructure, like corporate tax, like our educational system, our immigration system. and, you know, we acknowledged that in the it is task force ret and tried to get people to think

about hearing those policy conversations and issues in a different light now and to link it with our ability to grow those jobs. >> bill, is that responsive to -- >> [inaudible] >> great. the man on the aisle here, and then we'll do the one here. you can do him first, and then we'll go to the back. >> ted casinger. you've listed a number of policies that you think should be part of the conversation. one you haven't mentioned but has been prominent over the last decade or more in the trade policy debate is environmental issues. and using trade agreements and bilateral investment treaties to, in effect, export u.s. values in that area. we've seen the u.s. recently lost another wto case in the canned tuna labeling issue. the obama administration recently initiated a labor rights case under the guatemala agreement. what does the task force have to say about the proper role of

integrating environmental policies with trade promotion and investment policies? >> well, that's something that i raised probably more than i should. [laughter] but i did raise it several times, and i must say it was, it was something that i think the committee, the task force generally found to be supportive of. it comes down really to the question, again, of enforcement. how do we, how do we do a better job of insisting that we level the playing field with regard to many of the challenges we face with practices in other parts of the world? especially in the developing world today. and making it as high a priority as it should be and taking a more proactive approach to enforcement is something that i think the task force wholeheartedly endorses. >> let me just add, you know, i think the approach the united states has taken has been built up over the last two decades going back to the side agreement

toss nafta negotiated in the clinton administration. and i think really as a task force we just accepted that as part of the landscape right now, and we department want to refight those battles. we were reasonably comfortable with where u.s. policy was on those issues. we saw these other matters as really more pressing at the moment, as what ought to be the priorities. >> in the back with the red tie, and then we'll come back over here. >> thank you. andy olson. i wanted to follow up on enforcement. everyone supports more enforcement, but it got me thinking as you were talking, wto cases, they're complicated, they're difficult for the u.s. to actually bring one, it often requires getting a consensus in the u.s. business community because there are differences of opinion as to whether or not to bring one and how. and as, i'm starting to think as more small and medium size enterprises are indirectly or even directly exposed to the global economy, and i'm thinking

here companies that i've spoken to who have said, you know, my intellectual property rights were stolen by, you know, a cane in a particular -- company in a particular, you know, foreign country, are we, do we need more tools in our tool box? i mean, um, how do we, how do we address their needs? again, because doing it at that wto level can be lengthy, complicated, expensive. >> i think we've got plenty of tools in the tool box. we want to see them used. and i think you'll always have a debate whether or not we should have more tools. we had the debate over are the tools being used. and so we were saying the world has changed, and we want the united states to be more proactive about a pro-american trade agreement. that would be proactive in making sure that the rules that are there are followed. yes, we can have debates over other rules and other tools, but

this was not a desire to find other tools to use, it was really an encouragement to use the tools that you already have and invite the government to be more proactive in seeing whether or not unfair trade practices are a reality in a country rather than waiting for a complaint from a corporation. >> do any of the people who are on the task force want to weigh in here at all? do you want to add anything? he did a great job? okay. we have time for one more question. the woman in the back. >> angie stern is starting to get up, that's not a good sign. [laughter] >> strategic investment group. i'm going to talk about another tool in the box that we, no one seems to have thought about. that might unclog one of the major arteries of growth the u.s. economy has which is the construction and real estate sector. that sector when it was booming was contributing to easily 16-20% of gdp, was contributing

to employment, to aggregate demand and to linkages with the rest of the world. and that artery of growth is clogged. there is a huge derailment in that. the mortgage sector which was the one fueling that growth, of course, is stalled, is stopped, and it should have been stopped because it became abusive in its practices. so the tool in the box that no one seems to have considered is to equalize the after-tax treatment of represent payments, to mortgage payments. so why not think of something that will immediately unclog the real estate sector by allowing renters to deduct rent payments off their income tax which, i think, will do a lot to begin occupying a lot of empty houses and mobilizing the real estate and generating trade and generating openness to -- >> okay. i can assure you that, i'm sure, was not in the report.

does someone want to -- >> no, it was not. but it connects with the previous comment about small and medium size enterprises. i think i'll point out one of the many studies our task force relied on was done by the international trade commission earlier this year looking at the intellectual property of u.s.-based companies in china. and they surveyed several thousand u.s. companies, large multi-nationals and small as well. they tried to back and calculate how many jobs lost in america that meant relative to strong ip protection in china. and the number they came up with was 2.1 million jobs, but it's in small and medium-sized enterprises, and the knock-on effect that has on things like residential real estate. so one of the themes of our report is trying to think about the benefits of globalization can help america not just immediately for the large global corporations, but for small and

medium-sized enterprises and even for thinkings that you think -- things that you think of as traditionally being nontradeable. and i think the more americans see these as connections, and they're smart, think see these -- they see these, the more support there'll be in america for building jobs. >> but i think totally outside of the context, your question raises one of the primary dilemmas that the members of congress face today and that is, number one, how do you pay for a provision like that and, number two, where does it fall in this overall challenge either to simplify the tax code and eliminate a lot of the tax provisions to create this more competitive corporate climate that we've been talking about, and how do you do that given the array of provisions that exist today and the need to begin to find ways with which to simplify? so those dilemmas are going to play themselves out over the course of the next several weeks and months. >> for example, the value-added tax is deductible in the context

of international trade. >> right. >> the united states does not have a deductible value-added tax, so that is a competitive disadvantage, for example. so there, the tax debate is a very, very important debate to have in the context of international trade, and our invitation to congress is that when they debate taxes, they shouldn't ignore its impact on competitiveness in a global economy. >> with that, i want to close the meeting to a close and thank all of you for your good questions and attention and staying this the end, including you, angie stern. [applause] ..

[inaudible conversations]

[inaudible conversations] >> both the house and the senate are gaveling in today, the house in for a

>> william jennings brian, one of the best known speakers of his time and the first politician to campaign from the backs of railway cars and automobiles. he ran for president three times but lost. he changed political history. he's one of the men featured in the contenders. friday at 8:00 eastern. learn more about the series and our upcoming programs at c-span.org/contenders. >> the fcc's enforcement of its decency rules and whether police

should place gps devices on cars without a warrant are among the cases to watch on the supreme court's docket this term. former acting u.s. solicitor general neal katyal leads the discussion. thursday they preview the upcoming supreme court term which gets underway on october 3rd. the american constitution society for law and policy hosted this 90-minute discussion right here in washington. >> good morning, everybody. i'd like to welcome you to the american constitution society's annual supreme court preview. i'm caroline frederickson, i'm the executive director of the american constitution society for law and policy. i'm very glad to see you here this morning. founded in 2001, acs is one of the nation's leading progressive legal organizations and a rapidly growing network of lawyers and law students. scholars, judges, policymakers and other concerned individuals who believe in the progressive

values of our constitution. as an example of the kind of work that acs does, i'm pleased to tell you about a project that we've started with the national constitution center based in philadelphia. together, we'll be putting out a series of video podcasts on supreme court cases that include interviews with litigants who will discuss their experiences, bringing their cases before the high court and scholars who can place those cases in a historical and legal context. our first podcast will be on a case before the court this term, lawrence versus board of chosen freeholders of the county of burlington, which raises the question of whether a blanket policy requiring strip searches of everyone put in jail is constitutional. we'll have more information about that series in the near future. so to today's program, the supreme court's october 2011

term has the potential to be a real blockbuster. already on the court's docket are questions about whether the government can place a gps tracking device on a suspect's car without first obtaining a warrant. the scope of title 7's ministerial exceptions for religious institutions, and whether the fcc's rule regarding fleeting expletives is unconstitutionally vague but perhaps most awaited are the possible grants of certiorari of cases involving the affordable care law and the arizona immigration law s.b.1070 and also potentially before the court this term are challenges to california's proposition 8, which banned marriage for same-sex couples. in the university of texas admissions program which allows for the consideration of race among other factors in admission decisions.

but we will have to wait and see whether the court decides to take up the cases. but in the meantime, our panelists will discuss the coming term and we'll highlight for you the cases and the trends they think you should pay attention to. now, i know we had listed tom goldstein as our moderator today but he's been called overseas on business but we are incredibly pleased and honored that neal katyal has agreed to step in to moderate today's discussion. neal, as many of you has joined the firm of hogan lovells after serving ag in the united states. he served with the successful defense of the constitutionality of the voting rights act. prior to serving in the sg's office neal was a professor at georgetown university law center where he directed the center on national security and the law.

and he was one of the youngest professors to have received tenure and shared a professorship in the university's history. please join me in welcoming neal. [applause] >> thank you very much. [inaudible] >> we'll first hear from walter dellinger who will be talking the case that was just mentioned a moment ago we will susanna tabor and we'll hear from neil kinkopf who will discuss the nbz case which is about jerusalem

and presidential powers as well as intermittent intermittent -- s.b.1070 who is a professor at georgia state. we will next hear from miguel estrada, miguel is a partner at gibson dunn who has argued, i think, 19 supreme court cases. he'll be discussing the case about patentability as well as a brief discussion about the affirmative action petition that is now pending the courts involving the university of texas. i will briefly discuss in my former capacity as a panelist fcc versus fox, which is the indecency case. and then we will last hear from cynthia jones who will discuss eyewitness testimony and the confrontation clause cases. she's a professor at american university. and then last, we will hear from sherrilyn ifill who's a professor at the university of maryland and she will be discussing the really

interesting, ineffective assistance of counsel cases now pending at the court. they'll each have five minutes although if any of the panelists want to come in and ask questions to the speaker, that time will not count against the speaker unlike the supreme court advocacy. so with that, walter? >> good morning. and thanks for coming. i'm going to be discussing two cases that i'm going to be involved. i'm co-counsel for antoine jones in united states versus jones. with steve karr. in the jones case, the police -- federal officials put a gps device on the underside of antoine jones' car without his knowledge or consent. and without a valid warrant. and they then used that device to track the movements of the

car registered to his wife driven some by her and some by jones for the next 30 days. taking a snapshot of every 10 seconds of the location of the car and uploading this information which forms could be digitized and searched in various ways. there was a warrant which was conceivably not valid. it wasn't executed in the period of the warrant. it wasn't executed within the district of columbia. evidence obtained as a result of the locational information was introduced at his trial on drug charges. >> he was convicted and appealed. the court of appeals for the district of columbia in the opinion by judge ginsburg held that this was a search that should have required a warrant.

the government argues -- and first attempted to get en banc review, over the dissent of judge silverman and the government argued under the court's precedent that no warrant was needed. there's no fourth amendment issue raised by this because it's not a search. it's not a violation of the fourth amendment because all the information that was actually introduced at trial was on public -- could be observed from public thoroughly -- thoroughfares and the government placed a beeper with the permission of the owner of the container. it was placed in the container and the container was taken by the suspect, and they used the beeper to follow the car.

and the court held in that case that no warrant was required because it simply aided monitoring on a public street. and that there's no expectation of privacy when you're on a public thoroughfare. >> the argument that this was much more extensive than that because it involved 30 days worth of data taken every 10 seconds did not persuade judge silverman and he would and he would have granted en banc review. and a number of infinite instances of zero times zero. if there's no right of privacy being observed on a public thoroughfare the fact that you're observed every 10 seconds makes no difference. and would have granted an en banc review. the government went to the circuits which has taken a variety of different questions and cert was granted and part of the issue is the gps different from a beeper.

a beeper is good for a few hundred yards. maybe a bit more depending on the quality of the beeper and it aids the actual visual tracking and you actually have to have a human doing this. in one sense the gps is actually seizing the information itself. we also ordered when we granted the cert of certiorari, we granted a second question if the court ought to grant on cert, which is well, whether the government violated the defendant's fourth amendment rights by the act of tracking the gps tracking advice to his vehicle without his consent. that's a separate property-based interest that did they seize his vehicle and then use it as a transmitting beacon device against him and should that result or trigger the fruit of the poison tree? one of the arguments is you may understand that your neighbor

can observe you on a public street when you leave the house. what you cannot expect is that your neighbor will attach a gps device under your car and you use satellites to track your every movement. >> especially in maryland. [laughter] >> and in that sense i'll just close the discussion of this by saying in the effort to show how different this technology is, from the use of a beeper or the use of a binoculars or whatever, our work in progress brief that has to be submitted soon begins. in 1978, the united states department of defense launched the navigational satellite timing and ranging global positioning system or gps for use of the u.s. military. the system operates through 25 government-owned satellites orbiting the earth, each of which continuously transmits the information of every satellite in the system. the receiver on a gps device listens to the transmissions to the four closest satellites and

through a process known as trilateralization determines its precise location on earth. the device provides an accurate and continuous digital record at any period of time. the data is communicated to a remote computer translated onto an interactive map manipulated generated to range personal information about the individual's activities including their home, social and work activities if it is used for a prolonged period of time it will produce a pattern of locational and information and movement for every moment in that period. so which of these things is not like the others? yes. >> i think just in the interest of keeping the discussion moving, i'll ask you to discuss su-zana tabor a little later in the conversation. professor kinkopf? >> i'd like to talk about the mbz versus clinton case. i think many people are familiar with s.b. at the point 70 and

not mbz which is potentially a really important case. i'd like to spend my time presenting that in 2002, congress enacted the foreign relations appropriation act. and included in that -- i'm sorry, authorization act and included in that section 414 which is titled u.s. policy with respect to jerusalem as the capital of israel. one component of section 214 directs that the secretary of state list on passports and other records -- listing a place of birth for u.s. citizens born in jerusalem, that they be listed as having been born in israel if the secretary is requested to do so. in october of 2002, a man because born to u.s. citizen

parents in jerusalem and because he's born abroad to u.s. citizens he is a u.s. citizen by statute. and his parents went to the u.s. embassy in tel aviv and asked that his birth -- his certificate of record of birth abroad lists his place of birth as jerusalem-israel. when president bush signed the foreign relations authorization act he included a signing statement saying that section 214 infringes his authority to speak in a sole voice in international relations and it violates his authority, his recognition authority under the constitution. and on his birth certificate they listed only jerusalem. guinea parents filed a lawsuit

in the district of columbia. the district court dismissed the lawsuit ultimately on grounds that it presented a political question that the court could not answer. he appealed to the dc circuit. the dc circuit affirmed on two judges that it ruled a political question even though they resolved the case on the merits. and a third judge, judge edwards issued a concurring opinion in which he says this case does not present a political question but agreed that the case should be dismissed because the statute violates the president's recognition power. the parents appealed to the supreme court and the supreme court granted cert. they appealed. they sought cert on the grounds that the case does not present a political question. the supreme court granted cert on that issue and then does

section 214 violate the president's authority under the constitution to recognize foreign powers? now, the recognition power which i think is really what this case is about -- there's not a very plausible argument that this case involves a political question and i think the best argument for that is the fact that the dc circuit actually addressed the merits before it said it was a political question. l[laughter] >> so the case involves the recognition power. the recognition power is not specifically granted in the constitution. it said the constitution receives the constitution of the ambassador but everyone understands that that role is premised on the president's authority to recognize which ambassador is the real ambassador. if two ambassadors from a foreign country say i'm the ambassador, presumably each

representing a competing faction, as we're the real government of the foreign nation it's for the president to decide which ambassador to receive and in doing so, to determine what is the legitimate government of the foreign nation. but the recognition power doesn't stop there. it's generally understood to authorize the president to determine what territory the foreign nation concludes. so are the fact land islands part of argentina or part of great britain? for example, or is jerusalem part of israel or disputed territory as to which we take no position as to who is sovereign? the recognition power also has been understood to grant the president the authority to make policy as to how to go about recognizing or withholding recognition from a foreign government or as to a foreign government's sovereignty over a particular bit of territory. that much i think is not controversial.

what is controversial to some extent is the question of whether or not that power is granted exclusively to the president, right? zivototsky and his lawyers contest that game but there seems to be fairly broad agreement that, in fact, that power is exclusive to the president. there is a long body of precedent within the executive branch that makes the claim of exclusivity. there are a range of court opinions saying that the president has this authority exclusively in which case it seems like a fairly simple and straightforward question. the president has the recognition power, congress has infringed on the recognition power. the problem is congress has also relevant authority. congress has authority over naturalization. it's congress that determines that a person born abroad to u.s. citizen parents is a citizen of the united states under its naturalization power. and it's congress that has the authority to decide what kind of

documentation is necessary and that the government should issue to recognize that fact. and so congress has exercised that authority to say that u.s. citizens born in jerusalem are born in jerusalem, israel, so we have sort of a conflict of power. and i think this case is going to raise a real important characteristic of the supreme court. that is the supreme court is populated to an extent that i think is unprecedented by lawyers who have as their background arguing separation of powers issues on the side of the president. we have new justice kagan who was for years in the white house counsel's office. justice scalia headed the office of legal counsel. justice alito was in the office of legal counsel where, by the way, his signature issue was signing statements.

and chief justice roberts served in the attorney general's office which i think will orient the court to look favor apply on the president's position but the way they do it will have -- could have dramatic consequences because congress has other powers and the president has other exclusive powers like the commander in chief power. can congress use its spending power to limit the way the president exercises the commander in chief power? could congress say to the president no money may be spent for military operations in libya? or no money may be spent for a surge in iraq? these are important questions that i think will be implicated by the way the court resolves the dispute in mbz versus clinton. >> great, thank you. and we'll maybe have a discussion about the arizona case a little later. we'll hear from mr. estrada about patentability. >> that was time to go get a cup

of coffee. the patent pact which is an enormously important to a lot of people who make a lot of money out of it says in section 101, that any number of things that are invented, et cetera, may be patentable subject matter. now, note that i said patentable subject matter. this is things that are eligible for patent. now, the patent act goes on and says there are other requirements, they have to be novelty, et cetera, et cetera but now we're talking about what gets into the ballpark as to things what might be patentable if they're knowledgeable, et cetera. it seems broad on its face but for many, many, many decades there has been a doctrine in the case law even before the current version of the statute was enacted that says that no one may seek or get a patent based on a law of nature. so if an apple fell on your head

and you want to patent and you want to patent the law of gravity, you're out of luck. that's viewed as part of the common of patent of human kind. you cannot foreclose that knowledge to others. so far so good. and so now the caveat is that you may seek a patent on particular novel and useful applications of a law of nature, most things that improve our lives actually probably wouldn't work if they tried to do so in defiance of the laws of nature, right? things don't fall upwards. and so there has been a long tension in the case law of how far you have to go to have an application of a law of nature that is indeed useful and not merely an appropriation of the

law itself. and in addition does not foreclose the utilization of the law of nature to others. and so now we have a patent in the supreme court that has been upheld by the supreme court that is a patent for the extraction of bodily fluid, believing and thinking. and the question is, whether it's -- [inaudible] >> what's actually going on is things that are good only up to a point and so there's a very important area for doctors to try to take your bodily fluids and see how the drug has metabolized just to see whether you're in the correct therapeutic range. you know, if it's higher than 250, you're doing well but if you go over 400, for example,

not so good. and so the question is whether you can patent a blood test to look at the metabolize for this drug and think about whether you're between 250 and 400. the federal circuit says yes. it seems a very difficult argument to make in the supreme court because the supreme court had this issue of five years ago. i argued this case on the side of the respondent at the time and won on some other grounds and it was clear that there was a fair amount of hostility on the bench to the proposition that this is patentable. and they just took it again after sending it back to the federal circuit won so i think it's fairly obvious that many are issued in this issue and it's a very difficult issue and you think this is sort of an

anodine thing in that is simple-minded and you can't keep doctors from practicing medicine and there's some areas that are beneficiary that work on the proposition of investing billions of dollars in figuring out whether a particular natural compound help by nature and could be turned into a pill that cures dementia and at the end of the day if you take a pill is the action of a common compound based on the laws of nature as to how the compound is expected to interact with your bodily fluids? and so they're very sensitive questions for the court as to how far it can go in applying, you know, the law of nature doctrine to this area without epdangering whole areas of industry and science that people would concede are properly

subject to patents because otherwise people wouldn't invest in them. there's a very interesting issue. there's a lot of money and investment that's riding on it. but it's patent. >> i'm going to discuss briefly the fcc versus fox television station case and let me start again with the disclosure as walter did. i wrote the cert petition in this case. i also wrote the cert petition in the global positioning case so walter i'm sure my former colleagues if you would like to read the draft of your brief to us. but with respect to this case, this is about fleeting explet e expletives it's the second time it's been up to the court. a number of television stations and others are challenging the fcc's prohibition on the broadcast of indecent material. now, three terms ago the supreme court held that that policy was permissible under a statute the administrative procedures act. but the court left open the

constitutional question. the case went back to the second circuit for an oral argument and briefing on those questions where the matter was handled by mr. estrada admirably and well. there are three specific broadcasts that are at issue in the case. the first one was in 2002 when the singer cher uttered what the solicitor general euphemistically said the f bomb in a broadcast and not to be outdone paris hilton and nicole richie did the same thing and the third incident, nypd showed the unclothed buttocks of a woman on national television. now, as i said, after it went to the supreme court, it went back to the second circuit for a discussion of the constitutional issues and the second circuit identified two possible constitutional problems. the first one is it said indecency bans are generally seen as content-specific

prohibitions on speech. things that focus on the specific material that is at issue. and that that is generally something that is -- that receives strict scrutiny. the court's highest standard of review, the most searching type of review. however, the court said -- the second circuit said the supreme court issued a decision called fcc versus pacifica foundation which gave the government special latitude when it comes to matters that are broadcast over the public airwaves. now, the second circuit in its opinion suggested that the rationale for the pacifica decision had been eroded over time because of new technology and the like. but it didn't ultimately decide and get into that whole question. rather than, what it said was a second thing that said that the fcc's prohibition was just unconstitutionally vague. that there wasn't a rhyme or reason it said between the prohibitions, the fines that it levied and the ones that it

hadn't, that there wasn't a real difference in the broadcast that got fines and the ones that didn't. and so the government filed certiorari petition that was focused on that question about unconstitutional vagueness but the supreme court when it granted certiorari about whether or not the fcc violation project violates the constitution under the first or fifth amendment and that means that the court -- it wants to look at the rationale for the pacifica decision itself. the broadcasters have not filed their merits brief. i think one could reasonably anticipate that they will defend -- [inaudible] >> and i think one can anticipate that they'll defend the second circuit's rationale about no rhyme or reason. i think the open question will be how much they want to get into this should pacifica be

overruled or not and if not it will be a blockbuster. >> leading of the -- >> fleeting. >> it's deliberative. >> i mean, what is fleeting? seriously? i had a number of obscenities but they talk about a fleeting obscenity instead of a nonfleeting obscenity. >> somebody is talking about obscenity. >> right. >> and it's not profanity and it's not obscenity. and the question of a single utterance of a curse word could be sanctioned by leveling fairly steep fines per affiliate on each of the networks. and part of the problem is that, you know, the fcc takes the view that you have to beep them out every time they occur even in

news broadcasts and even if you're covering a live event such as a -- >> a panel discussion. >> or a panel discussion. [laughter] >> but, in fact, one of the tough moments that the fcc lawyer was that c-span radio, which is a broadcast station covered the argument. and all three members of the second circuit were curse ago bl -- cursing a blue streak. [laughter] >> and one of them asked counsel for the government we have c-span broadcast every judge on this panel has said things that people normally don't hear judges say. it is clearly relevant and are you going to go for the c-span and the counsel went blah, blah, blah. [laughter] >> that was only the tip of the iceberg. >> thank you. all right. professor jones, you're going to talk about eyewitness testimony.

>> yes, in perry versus new hampshire. it's a case that's going to be argued on december 2nd. the issue is pretty simple and that is when an eyewitness identifies the defendant as the perpetrator outside of court, under what circumstances is the court going to allow that information to come in at trial? that is that the witness can take the stand and say on the night of the robbery, i pointed to him and said that's the guy. it has been since 1977 that the supreme court has really done a serious look at the standards for letting in eyewitness identification testimony. and the courts analysis basically centers on reliability. we're going to allow that testimony in, if the circumstances surrounding the making of that identification were reliable. we have learned a lot about eyewitness identifications and misidentifications and unreliability since 1977.

and the social science has changed. and mostly because of wrongful convictions. it is undisputed that in the 270-plus wrongful convictions, the number 1 cause of wrongful convictions is eyewitness mis-ids. in about 75% of the cases, the person -- where a person has been exonerated with dna evidence, an eyewitness misidentification played a significant role in the case. so the question is, clearly, the standards that we've been using since 1977 aren't protecting against unreliable eyewitness identifications in court. so that's the broader question that the supreme court has invited and could begin to address. that is they could refine some of the language from its earlier cases in stovall and brakeway and biggers. the very specific question raised here presents a unique set of evidence and give the supreme court an out to address

that question. and that is in the overwhelming majority of cases where there's an eyewitness identification out of court, the police have initiated it. it's either a lineup and they put the defendant in a lineup, a photo array that the place have assembled of arrest photos or it's what's called a show-up where they bring the suspect to the witness and say is this the guy? and in those cases, the supreme court has said we want to look at whether the police did anything that's unduly suggestive, you know, are they going is this the guy going here and they're choking him and he's in handcuffs and he's bleeding and he's already confessed and is this the guy who did it or is it a lineup where the witness said it was a black guy with dreadlocks and everybody else in the lineup is white, you know, those are the kinds of things, no, the supreme court has said it could be unduly suggestive but in this case the police did not orchestrate the identification. this was a situation where the police came to the scene. they stopped a guy who seemed to

be in the area and matching the -- matched the description. they then went to interview a witness and they said, what does the guy look like. she said it was a tall guy and he's the one down by the police officer. they didn't make the guy go to the witness' attention but she gave that description. the defense -- the petitioner on appeal argues that was an unduly suggestive identification. and it doesn't matter whether the police initiated it or orchestrated it. the fact of the matter is, it's unreliable. and the lower court said you know what? if the police didn't do anything wrong we're not even going to get into whether it was unreliable and therefore violates due process because it was -- it was flawed. and the specific issue the court has to address is, does its precedent on the admissibility of eyewitness ids apply if the police did not cause the out of court identification? in this case, in light of what

we now know about wrongful convictions and eyewitness mis-ids, it's really interesting because the witness -- a latino woman, she says -- it was a tall black guy. that's all i know. she later is shown the defendant's picture in an array of photographs and cannot pick him out. later at trial, she does not make an in-court id saying i didn't really get a good look in the face. she's the only witness who actually witnessed the theft and who could identify the person. no one else actually saw the theft so we have a situation where there actually is a risk of misidentification here. she cannot definitively say this is the guy other than he's the one in the parking lot who was near the scene and with the police officer at the time. so the supreme court could simply say the police officers did nothing wrong, our precedent has always involved police officer-involved out of court identifications usually because that's the way out of court

identifications occur. or the court could take into account what has happened since 1977 and what we now know about eyewitness unreliability. one of the factors the supreme court has instructed lower courts to take into account in deciding whether an eyewitness identification is reliable and, therefore, admissible in court is the certainty of the witness in the identification. the witness says i'm absolutely sure that's the guy and i'm 100% positive. well, in about 75% of all wrongful convictions, the witness was absolutely certain and all of the social science research that we now have says, certainty does not equal reliability. we thought that in 1977 in the prior cases but that's no longer widely respected as a factor in reliability so the supreme court could issue a very narrow ruling on whether the police must be involved for there to be a police identification to exclude an identification or the court could take an opportunity which

this case presents to take a broader look at the unreliability of eyewitness identifications and put some restrictions on their admissibility and use at trial. >> i mean, i think, you know, i should start with a disclaimer i was once a prosecutor, and i think you are right that inquiry identifications tend to be unduly predicated on juries and not as reliable as people think because people are nervous and whatnot. i once had a bank teller in court identify the deputy marshall as the bank robber. [laughter] >> and the guy that actually was the bank robber still got convicted. but what is the limiting principle of an inquiry that

looks at the reliability of in-court id or out of court id? is the claim that the constitution of its own force gives a criminal defendant a right to have the reliability of evidence, all evidence tested pi means other than cross-examination? because i can think that there are many other types of evidence that dna -- you know, the lab is not good enough. is that before the prosecutor is allowed to put these things in front of a jury, might be the subject of a long fight in front of a judge as to whether this is, quote, reliable enough. and the question is, if you take out the involvement of the cops, what is the limiting principle that will keep the file in a criminal case from shifting from the jury to a judge? >> well, in the interest of full disclosure, i used to be a

public defender. [laughter] >> i've also had cases of misidentification. i think here we're in a different posture than we would be with other -- all other forms of evidence. that is the supreme court has already, since 1967, recognized the fallibility and the vulnerability of eyewitness testimony. and has already determined that that should be tested pretrial. so we're not charting a new course here. the prosecutor -- if the defense wants to challenge an out of court identification, the defendant already has the right to do that. the question is, what restraints or what restrictions can or should the supreme court put on the use of eyewitness testimony? and to what extent should the defendant be allowed to litigate its own responsibility given that we all know about the fallibility of eyewitness testimony. given the number of times the witnesses in good faith have just simply got it wrong. and so jurisdictions across the

country have placed all kinds of limits and restrictions not supreme court constitutional level but state court constitution requiring judges to give specific jury instructions on eyewitness misidentification and unreliability have conducted hearings more elaborate than the standard hearing pretrial before i will let this testimony in. so there are many issues that are raised. >> if there's a federal constitutional right, how is the court to divide off and cordon off if you think they should from all other forms of evidence? >> i think that what -- well, in terms of forensic evidence, that issue has been of at least preliminarily addressed by the national academy of science report in 2009 which basically said all non-dna forensic science, like hair analysis and bite mark analysis -- everything that's not dna where they're comparing science -- that that

has some reliability problems and that's already sort of in the pipeline for the challenge, fingerprints and things like that. and with respect to eyewitness id, i think the court can single it out because it is incredibly, incredibly powerful evidence. and the courts already recognize the fallibility of it. unlike confessions and jailhouse informant testimony where there's some issue about its reliability, this is the number 1 cause of wrongful convictions. >> one more question, the number of factors that you mentioned that undercut -- raise doubts about the reliability of eyewitness id, take it with one exception that probably all were put before the jury that you at a photo lineup you were unable to identify. >> absolutely. >> all of that is put in front of the jury with one exception and that is information on the general unreliability of eyewitness id's. that the law the defense counsel

is constrained in putting before the jury evidence from experts from unreliability or where are we on that? >> it's the defendant does not have a right to do it. the trial judge could allow a defendant to do it and the trial courts have allowed defense to call an expert of the unreliability of ids and about the further unreliability of cross-racial testimony. that testimony can go before the fact finder. the problem with letting the issue come in, if it's unreliable you don't let it come in. it's sort of like an expert come in and they made up some science. and if they relied on it that sounded pretty good to me and it sounds credible and they could make a determination based upon unreliable information so the judge is the gatekeeper.

and the judge should make that determination pretrial and only let the jury hear that which actually is reliable. >> you've been very patient and we're you were talk ineffective assistance of counsel and how important those cases are. >> yes. and i apologize. baltimore is a very large distance from washington, d.c., in many ways that most people, i think, don't recognize. but walter's question and cynthia's answer is the perfect segue talking about ineffective assistance of counsel can you put it out and some people allow it in? if you have take notice if the supreme court has this many cases involving ineffective assistance of counsel and there are -- [inaudible] >> that race this issue in the supreme court of this term. one particular case and then another set of cases. now, you know, the framework of it. the sixth amendment guarantees the right of the accuse to have

the right of the counsel and you have the right to the effective assistance of counsel and to raise a claim that you have received ineffective assistance of counsel to a level that violates the sixth amendment you have to prove that your counsel was deficient and then you have to prove that that deficiency was prejudicial. that is, that in the absence of -- things might have turned out differently. now, the supreme court has been kind of not very sympathetic about this question. they have afforded a presumption of effective assistance of counsel in the case of bell versus cohen you may remember in 2002. eight justices on the court led by justice rehnquist said that it was likely or reasonably or a strategic decision for counsel at the sentencing portion of a capital trial to put on no witnesses and to not make a closing argument. two years ago in wood versus allen justice sotomayor led the court in suggesting that it was

reasonable for the trial court to determine that there was not ineffective assistance of counsel in a case in which an attorney who had only been admitted to the bar five months was handed the responsibility of the sentencing phase of a capital trial and failed to do any investigation or put on mitigating evidence that might have helped the defendant. so the landscape doesn't look great for these claims but the fact that the supreme court has taken so many and that they raise this issue from different perspectives, i think, seems particularly important. one set of cases that two of them lafleur versus cooper and missouri versus frye raise the issue the kept of plea. what happens when counsel does one of two things. either fails to convey to the defendant that the prosecutor made a plea offer? or so provides incorrect advice to the defendant as lafleur versus cooper where the defendant was prepared to admit that he had shot a woman four times and was prepared to

confess and to try and get a plea but his attorney told him that the prosecutor could not possibly prevail on a charge of assault with intent to commit murder 'cause all the four shots that he had fired and that had landed into the victim were all below the waist. and counsel advised his client that, therefore, the prosecutor could not prevail on this charge. it turns out this is absolute not true. and so they went to trial and the defendant, of course, was convicted. so we've got the plea case and a significant issue in the plea cases is what's the remedy? if you wanted to say, for example, in missouri versus frye that it's ineffective assistance of counsel if the counsel gets the letter from the prosecutor saying here's the plea offer and never tells the client, is it possible to imagine what the remedy would be? so in the trial court the district court said well, we ought to require specific performance of the plea that was

offered. in other words, we ought to require now that the defendant now be allowed to take the plea that was originally offered that she never heard about, right and there's some contention about that and neal may have a idea about if that's a workable solution to the problem and another case that's important is maples versus thomas and notwithstanding the question presented, the question to me in this case is how much full representation can one criminal defendant receive before it rises to the level of ineffective assistance of counsel? and this case arises out of alabama. and in many ways, i think this case actually pulls together many of the strands of concerns that have been raised in prior cases involving ineffective assistance of counsel which come out of alabama. and so it's important to know the context of this case. alabama is a jurisdiction that does not provide indigent criminal counsel for convicts in

post-conviction proceedings. they also do provide counsel in trial proceedings in capital cases and in direct appeals but they cap the attorney's fees that can be recovered at $1,000 and so what this means is that very often you have not very experienced attorneys who are working on capital cases in alabama. in alabama you also do not need to have a unanimous jury verdict to impose the sentence of death. 10 out of 12 jurors are sufficient. so if you put all of that together, you get a lot of cases emanating out of alabama as wood versus allen two years ago and maples versus thomas this year in which cory maples went to trial with pro bono counsel, two very inexperienced counsel at both the guilt phase and at the sentencing phase. the counsel fails to put on any evidence about the fact that he had been taking crystal meth and crack on the night of the

murders, which might have suggested that he under alabama law doesn't have the mental capacity and the fact that he had bouts of depression and suicidal, abandoned by his mother, abused and the other kind of mitigating evidence that might have helped at the sentencing phase, in fact, they were so overwhelmed at the sentencing phase that the attorneys themselves said to the jury, we know it looks like we're stumbling around in the dark. so, obviously, he was sentenced to death. and then at the post-conviction phase he actually seemed to hit the jackpot. he got two attorneys from sullivan and cromwell, a new york law firm, who agreed to represent him. they did all of his post-conviction work and then they disappeared. and so when the clerk of the court sent a notice to the attorneys saying that his petition for post-conviction relief had been denied, they received a letter back from the firm saying, return to sender, left law firm. the circuit clerk didn't make

any efforts to contact the firm. or to contact mr. maples in prison and so the deadline for his appeal passed on post-conviction. and the habeas proceeding, when he learned that the deadline had passed, he was lucky again and got two attorneys. these seemed to be two very good attorneys but the alabama courts were very clear that he had defaulted. he had failed to appeal his post-conviction. his denial of post-conviction release and the 11th circuit has also said he defaulted procedurally and he's unable to raise his claim of ineffective assistance of counsel and so the court is going to have to deal with that issue coming out of alabama and deal with the plea issues and there are at least two other cases that raises ineffective assistance of counsel and the court wants to say comprehensive perhaps about this field that would justify them taking this set of cases. >> so we have about 30 minutes left and i want to save 20 minutes for questions but i do want to ask the panel to comment -- we've been talking so

far about the cases that the supreme court has granted certiorari and agreed to hear but there's a bunch of stuff that people think they might hear. and as you all know, i'm no tom goldstein. i can't predict this but you all can. there's health care. there's affirmative action. there's s.b.1070. there may be criminal cases and if you could all spend couple minutes tops so we can have room for audience questions on these cases and anything else you see coming down the pike. >> well, there's actually two affirmative action cases that might make it to the supreme court and the one tommy thought might make it is somewhat less likely to make it up there it's not all that interesting. it is the ut case. now, you may recall that the supreme court in the last hurrah of justice o'connor upheld an affirmative action program for the university of michigan that

said it's appropriate to take race into account if you do it in a way that is personal and not a quota and you do a lot of other stuff so that actually no court can figure out what the heck you're doing. which is exactly the set of standard. if you make it so diffuse and so vague individualized that nobody has a smoking gun that race was actually the actual factor, then you can do it and people in the universities shockingly are able to do these things. and so i don't think that's the rule that the supreme court is going to be interested in coming back to that issue so soon. now, what makes this ut case so interesting is that in the interregulinte interregular e- --

inter-regnun, the texas legislature i think at the berest of a late republican whom i'm sure is very close to everybody here passed a statute that said in order to increase the number of minority students in texas public education, there was going to be a guaranteed 10% for the top 10 at each high school would be entitled to go into one of the universities in the ut system. and so the question that becomes much more interesting in this case it's in effect double-dip. if you can have a statute that gives you a umf that you have virtue by the 10% rule but still have some level of deference to the university if it deems that's not enough and wants to also do one of the types of

affirmative action programs that were upheld in 2003 in the garter case. i will say that the ut program was upheld in a very thorough opinion by judge higginbotham in the fifth circuit. there was not a dissent. judge garza wrote a special concurrence saying that he went along with it but thought that the supreme court was out of its mind. and if you basically have a panel of the fifth circuit of all places telling you that this is okay based on existing precedent and they can say that the supreme court should have overruled this case doesn't really sound like -- like a gilded invitation. if it goes to the fifth circuit

if it gets out and it has to do with the michigan side of the story. after the plans were upheld in the supreme court, there was a popular referendum that essentially outlawed affirmative action in public education in the state of michigan. and as a result of that, you know, the one school that went to the supreme court can't do it anymore. the sixth circuit in a 2 to 1 panel threw that out as a violation of equal protection based on the theory of a couple of cases, hunter and -- [inaudible] >> that said it's unconstitutional. to place political impediments to minorities in the attainment of certain benefits. now, the cases that the court

actually cited involved trying to entrench actual discrimination, people that were trying to make it difficult to get rid of racial covenants or to try to make it difficult to desegregate schools. insofar as the grotter case did not say affirmative action was not a remedy for discrimination but was actually an affirmative good based on the diversity rationale, there is not a very good fit between what the panel said and the cases that it cited, the supreme court -- i mean, i'm sorry, the sixth circuit just last week took the case en banc. i would think that if it gets out of the sixth circuit of that form it's almost certain the supreme court would take it and i don't think it would be for the supreme court either but now that they have taken it en banc

now it will never get there. >> the ut case -- of course, the presumption is -- and given what happened with citizens united i don't think we can necessarily presume because the court decided grotter in the last decade that it will decided that you can get four justices to decide that case. i think there's a certain amount of anxiety and nervousness about the ut case. i think what's interesting about the ut case is something that miguel alluded to is that when texas announced this 10% plan, you know, that students who graduated at the top 10% of every popular high school would automatically be admitted into the flagship university and so forth, people said that's the answer. that's the solution. you don't have to deal with the messy business of race that justice roberts doesn't like because it's so unseemly and, you know, you've -- because of our segregated school system, yea, we're going to have black students who are going to make it in. in the interim what the university of texas has been able to discover and to develop

particularly at the law school that it's deeply problematic the way it excludes, for example, black students whose grades are not as good but their s.a.t. scores or their l.s.a.t. scores are not as good and black students take an academically rigorous program so they can graduate higher in their class. it undermines this idea of looking at the content of the academic program and so forth and so they've actually adduced some very interesting data and information that suggest that these kind of blanket 10% plans are not the answer. and that it seems to give more robust support to the idea that universities have to engage in a kind of more individualized process that gives them an opportunity to look poor closely at the students in a way that the grutter case suggested. so the framework, the presentation of the case should the supreme court decide to take is a way the ut has been able to

adopt that and for the nation to be able to grapple the fact is not one of simple math of top 10% that we solved our problem that it's considerably more complex and it seems to me to make the ut case more interesting. >> okay. health care? >> health care. >> you know, i think the health care law, if it gets to the supreme court this term -- i no longer think that's certain. but i think if it gets to the -- >> tell why you no longer think it's a certainty? >> well, i think the jurisdictional issues are significant. the question of whether the tax injunction act prohibits the challenge to a federal tax until you pay the tax which is 2013 when the first person tops pay $95 to not have coverage whether that should lead to the postponement of the litigation. the sixth circuit plaintiff says their case is ripe because they

need to start saving money now because they have so little law that the health care has the permission of excusing anyone who has a financial hardship so they have almost pled their way of having a real case or controversy in the sixth circuit case so i think there are some problems. i've always thought at the end of the day it was going to be upheld. and it wasn't going to be close or come down to justice kennedy. i rarely make predictions unlike tom but i thought -- i know. and you had mentioned that he does make predictions. i've always thought it would be at least 7-2 to uphold it. maybe 8-1 and justice thomas because he is willing to re consider very well precedents in the 18th and 19th centuries. i would assume the chief justice would assign the opinion himself and would not want to write an opinion that would only way to

deal with mainly social problems is a single payer program other than to have incentives to run in the private market and i think the notion of whether this is within the jurisdictional box of commerce is an almost ridiculously easy question that is incentives to make a purchase of interstate commerce and they're not raising any liberty issues. it's just in the subject matter box and the arguments there are a lot of other things congress might do with that jurisdiction are arguments that don't actually work when the only question is whether something is within a subject matter. so, for example, i think as you and i have discussed, the attack on the social security law says -- congress has the power to do this it could set the social security age at 25. well, yes that's because it's a jurisdictional question. when the minimum wage law was passed, and the question whether that fit within commerce among

the states, the statements if congress can pass the minimum wage of $5 an hour it can pass a minimum wage of $5,000 an hour. well, of course, but that's the nature of jurisdiction. there are other constitutional doctrines that come in to play when congress does such a thing. and right now it is indisputably within the power of congress to enact all kinds of ridiculous regulations when you engage in commerce. i think judge sutton's opinion makes a huge difference by identifying the fact that this notion that this is a nation of inactivity. this is a health care service is something no one can be sure they won't be using when they do need them, they will be providing for them at least in some fashion. the cost will be transferred to others. if you're going to self-insure. and i think you put this all

together this is not -- i think this is not going to be seen as a difficult case. miguel thinks otherwise. >> well, actually i think it's a very complicated issue on a number of levels, dealing with the first issue that neal identifies when if ever you will get to the supreme court i think we should all agree that it would be in the public interest for the education of the issue which as contentious as it is to have it done with and to get it on its way to the supreme court as soon as we can it's a clean legal issue. you don't need to have any sort of factual issues on that. and, you know, we've had rulings for -- from multiple courts on all sides of the issue. it is nonetheless very clear that the strategy of the administration is to do cartwheels to keep the case out of the supreme court so as not to have a ruling before the 2012 electorate. they take every extension and they do everything they can to

stretch it out and just so that you know if a case -- if a case on this issue is not taken by basically the second week in january 2012, you will not have a ruling before the election because it will not be heard. unless they have a special sitting. and i will bet you any amount of money that the administration is going to see combined in the 11th circuit even if you look at the composition of the panel there is no way in heck that they would get it but they want to chew off, you know, the time just to make sure if and when the court gets it, it is not for a ruling until after the election. now, there are -- once you do get it there -- you know, the issues are really hard. every time you ask the supreme court to overturn an act of congress it's a very difficult thing for the court to do. and congress comes to the supreme court with a presumption of deference and constitutionality.

the very issues as to the standing and as to the jurisdiction -- if this were, in fact, a tax, i think, you may be right that there's a jurisdictional question, you know, the case of the administration on the tax issue is not aided by the fact that the man who signed the bill, you know, the president of the united states went on the speaking circuit saying that it wasn't the tax. and he was challenged on tv with somebody with a dictionary saying this is a definition of a tax and he said i don't care what you call it. it is not a tax. and at some point there's a question as to whether if you're dealing with user fees or burdens or impositions that could reasonably be called a tax whether you are not owed some level of deference from the guy who signed the thing. and taking him at his word. you know, the congress issue is actually very hard because you have the wicker case and the

rage case and i have a lot of respect for jeff sutton and i think his analysis was a very honest attempt to grapple with a different -- with a difficult question. i also have a lot of respect for frank hollen on the 11th circuit who was a clinton court and she worked hard to grapple that question and they came to very different conclusions. it's a hard question. >> they said the injunction act would apply and i think that is a plausible argument if you accept the proposition that you are not to take the president of the united states at his word. >> whether or not the tax junction act bars this it's knots whether or not you can constitutionally defend it as an exercise of the taxing power. that is quite clear if someone -- if there's a

surcharge of 2.5% on the federal income tax that that is a tax within want meaning of the tax injunction act you might not say that because of the signaling function but if that doesn't change the fact of it. a couple of other comments. >> keep the discussion moving, i'm so sorry. did you have any cases that you wanted to talk about? >> i just wanted to brief alert you to a couple of other criminal cases. there's one case that involves yet again an analysis of brady versus maryland. once again, we have a louisiana case where the government has failed to turn over exculpatory information to the defense as is constitutionally required and the supreme court has to do an analysis of whether the defendant's constitutional rights were violated and we have one other case on the confrontation clause. that's an area where i suspect there's going to be a lot of litigation for many years to go. and in this case it presents a

case between the court's most recent precedence requiring that when the government wants to introduce documents for analysis or forensic analysis or reports they have to call the person to perform the analysis and they can't just rely on the written record. it presents a clash between that principle and another principle of evidence that allows an expert to testify and give the basis for their opinion so the expert can say this was the cause of death and i read the toxicology report prepared by somebody else. that person is not going to testify, but i can tell you what that report said. those two rules -- the confrontation clause and the rules on expert testimony clashed in a case williams versus illinois that gives the supreme court an opportunity to tweak the confrontation clause analysis in light of its rules on expert evidence under rule 703. >> question quickly shortage of

commentary on arizona. and there's no doubt that the court will issue cert for reasons that are obvious and compelling. not only has the ninth circuit enjoined the law or upheld the injunction of a law but other states have followed arizona and enacted their own laws. my home state of georgia has, alabama has, utah has, indiana has. and in each of those cases, courts well, except for alabama, in those cases courts have enjoined the enforcement on the act of the doctrine of preemption. alabama has stayed its decision while it further studies the question but no court has upheld one of these statutes. the national association of state legislatures, the national state counsel legislatures say many states have major immigration legislation pending so there's an obvious need for guidance. the one caveat i would offer this involves a question of

preemption? the issue is not racial profiling and a lot of public discussion centers on that but the issue on these cases is whether or not these laws are consistent with federal statutes. and the court might well think that congress is going to get around to addressing this issue and it's congress that ought to be providing the guidance. so with that caveat in mind that the court might decide to sort of sit back for a while and see if congress does anything, the other factors would seem overwhelmingly to indicate the court ought take a look at it in which case i think this is a case that comes down to justice kennedy. and i think it's hard to know in advance what he will do. he has been sympathetic to preemption claims in the past in a way that you would make you think that he would be willing to side with the ninth circuit on at least some aspects of arizona's law. on the other hand, he's, as he has on so many areas, gone both ways so it's apt to be a close

argument. >> could you identify what the precise preemptive federal law that would be operative in this case? >> this would be two types of the arizona laws that had been challenged. one would be law enforcement. one set is the law enforcement provision that authorized state officials to, of course, enforce federal immigration law. the other set would be new crimes in the state of arizona. arizona crimes that are based on federal immigration -- >> but i'm asking -- for the flip side of that which is what's the federal -- >> right. so the federal preemption with respect to the law enforcement provision, there's a federal law that dictates how it is that the federal government states are to cooperate. states apply to the attorney general. the attorney general designates

them. chooses officer by officer, which officer will be authorized to enforce federal immigration law and it's all subject to the attorney's supervision and control, which ought to appeal even to a justice like justice scalia who thinks it's a violation of separation of powers for congress to vest local law enforcement officers with authority to enforce federal law. so, you know, why wouldn't the arizona law fall under that? that's a separate argument from preemption. the preemption argument is arizona is going around that system of having the attorney general specify the officers and directly authorizing their officers to go ahead. with respect to the criminal provisions, it's simply a matter of federal discretion as to how to enforce federal immigration law which is complicated by the fact that you're introducing local state prosecution. >> that's why -- i mean, i guess the question i want to ask is,

it seems to me that for reasons that we don't really have time to get into, both aspects of the problem really do involve a claim that the -- that the preemption flows from the interference with a discretionary authority of the attorney general over -- over the enforcement of the immigration laws. and in order to make that sick -- and i do concede that the case law that a federal policy may have preemptive effect because doesn't the administration have to say that the current level of enforcement of thegration law, which is to say whether you think it's lax or just right is a federal policy and, therefore, additional enforcement of the immigration laws to, you know -- >> no, i don't think that the federal government has to say the current level, at that

systemic level is where it's supposed to be but case by case the attorney general has to have discretion about what to do with a particular alien. >> but the state law says you bring him to the feds, right? and so at that point the a.g. has the discretion so there is, in fact -- >> not the provisions of state criminal law which say throw them in state jail and that might not be the disposition that the attorney general wants with that case. >> okay. well, with that, we have some roving microphones. and if you raise your hand, we'll bring them over to you. >> hi. i'm greg store with bloomberg news. and i wonder if you would respond to the government's assertion that they would do cartwheels to keep the health care case out of the supreme court this term?

>> well, i don't want to speak about anything that's not in the public record -- because, i argued all these cases in the circuit court so i don't want -- and i can't speculate about what they're doing since i left on june 30th, but i mean, i think there's nothing that could be farther from the truth about the government's expedition of all of these cases. we went with a radically fast briefing schedule on every single circuit court in order to get prompt resolution of these issues. so i can't speak to, you know, what's happening now with respect to the supreme court and whether or not issues should percolate more in the like but the notion that the administration has been dragging its heels, i can't -- i'm not hard-pressed to think of a set of cases in which -- in which any administration has moved more quickly in the circuit courts than these health care cases. >> and any government who has not pressed jurisdictional issues that could have postponed litigation until 2015 has chosen

not to press those issues but to proceed to get resolutions on these cases. >> well, just two points. those issues were raised in all the district courts until you lost them. or they lost them. you didn't. [laughter] >> and i don't want beat you, neal, but do notice that he said that we have been expedition in the circuit courts we have gone through the processes that exist to go to the district court and i'm sure we will be expedition about filing for a en banc for the 11th circuit. they had the legal option as soon as they lost cases in district courts in the 11th circuit and in the fourth circuit to do what the government has done on many times on other cases of questions of national importance to seek cert before judgment and go straight to the supreme court. people asked them to do that and they were very careful not to do it. >> they are seeing certiorari

before the government they have had three or four cases in a couple seconds often in cases where there was a massive injunction with a real problem. here the law goes into effect with the individual mandate in 2014. there was a cert before a judgment petition and it was filed without any dissent and the notion that it would meet these standards i think would be a very hard argument. >> it's proper for the government to say this issue is going to benefit from having more judges look at it and get less away from the -- >> i think its -- >> i understand that and the more a judge will look at it i think that will more eventually be apparent that, of course, a regulation of one-seventh of the national economy is within the subject matter of commerce among the states. >> the beatings will continue until the morale will improve? >> neal can't address this but i

can't imagine why the -- why the administration would not want this issue resolved before the election? >> really? >> yes, absolutely. it's a political matter. i don't even know what the incentive would probably be as well as the absence of any -- of any evidence that that was thought to be desirable. >> yes, over here. >> hi. on the mbz versus clinton case of a baby boy born in jerusalem, if i understood it correctly that perhaps a preliminary issue -- a db political question jurisdiction and whether or not that would implicate baker versus karr and i heard if there's one case, justice scalia wrongly decide it and would love to overturn baker versus karr. >> i don't think this -- that mbz would provide a very good vehicle for overruling baker versus karr. it might provide a good vehicle for saying discouraging things

about baker versus karr with justice scalia. but the question in the case is whether or not the recognition power resides with the president. and whether or not congress' law invades the president's recognition power and there's just no political question there. the political question would be whether or not to recognize that jerusalem is within israel. but that question isn't presented in the case. the question is, who get to make that call? and that's a legal question. and so i don't think the court is going to hesitate over the political aspect of the case. >> ian with the american progress. the way you characterize the decision in the eyewitness case that they insist the police didn't do anything wrong so that makes it okay? >> yes, the lower court said because the police officers did not orchestrate that eyewitness id, we don't have to engage in

an analysis of whether there was a due process violation. >> so that strikes me as tragically wrong and here's why. every case i know of where the court has said the police didn't do anything wrong so we're not going to allow a remedy here has been an exclusionary rule case and an exclusionary rule case is the nature of the case is that we have evidence that we know is probative of the truth. if the police find me with marijuana illegally they know i'm in possession of marijuana. the question here is that is whether or not the evidence is probative in the first place and so it seems to me the massive shift of constitutional law that the purpose of a trial is no longer to assess probative evidence for truth and it's if the police checked all the probative box. my question is this case an outlier or are we seeing a shift

from trials being viewed as a determination of the truth or whether or not a trial should be viewed as simply whether the government checked all the right boxes, and if they do, it doesn't matter if the guy is guilty or innocent or not. >> i don't think it's quite that drastic of a shift and the court should not focus on not whether the police officers did anything wrong. there's definitely an interest of the courts and an interest of government in making sure officers behave themselves and conduct their investigations properly. but the interest here vindicated by the courts eyewitness identification testimony, it just so happens that in the overwhelming majority of cases it involved police officer identification. it's not contingent upon that. the real inquiry is, were the circumstances -- whether the police were involved or not -- were the circumstances of that identification suggestive such as would make the identification testimony admitted at trial unreliable? it doesn't matter whether the police were involved.

if it was a scenario where the judge should not let it in because it's so unreliable and it's likely to lead to a wrongful conviction, we don't really care if the police were involved the petitioner argued and the lower court said, no. that just like with suppression of evidence seized unconstitutionally on the fourth amendment the focus is on police misconduct. and it's not -- in the first instance. if we don't have that we don't even have to etch radio the circumstances regarding reliability and i agree with you. i think that's just wrong. i think the courts should address that in substance. and if they do, it then raises the issue about what we now know about run reliable eyewitness id. >> this is a perfect segue about one of the case that i think is going to get the most attention this term in the supreme court and that's a case called florence versus board of freeholders of burlington county new jersey. ..

>> he had, in fact, paid the fine. and so nervous was he about the possibility of being pulled over on this outstanding warrant, that he carried with him with the copy on it, the raised seal, indicating, in fact, that he had paid the fine. and he showed this to the officer, but the officer said i've got to go to the computer, so they arrested him. and he was held in jail for a week. he should have seen a magistrate or judge within this hours -- 24 hours, but he was summited over the course of a week to two

strip searches he alleges. the case that he filed after he was finally brought before a judge, it was determined that he had paid the outstanding warrant, and, therefore, he should not have been arrested. it raises the question of whether a jail should have the policy of blanket strip searching everyone who comes in or whether there's a reasonable suspicion that the individual might be carrying contraband or might otherwise be concealing a weapon of some sort. now, this is importance because mr. florence n this case, is the financial manager for a car dealership. this is clearly a case in which he didn't do anything wrong, he was arrested. it's also true that 14 million americans are arrested every year, and very often they're arrested and, ultimately, not charged. he's now filed a class action that includes people who were pulled over for failing to have on a turn light, for having a noisy muffler. mr. florence is african-american.

new jersey, of course s the place with the famous driving while black i-95 case in which 75% of people stopped and arrested on i-95 by troopers were black although blacks constituted only 30% of the motorists, and all the evidence was that blacks and whites committed infractions at the same level. but you've also got the context of 14 million people being arrested. the police do make mistakes. do we want to have a rule that allows at the jail -- we're not talking about prison, at the jail -- a blanket policy of subjecting everyone who comes into the jail who may be arrested for a variety of reasons that are not even serious crimes to be subjected to a strip search. there are a lot of amicus briefs filed on the side of of the new jersey jurisdictions, and i think it's one of the cases to watch out for. >> wonderful. well, i'm told we are out of time so want to thank the panelists for a great presentation. [applause] see you next year, we'll see

whose predictions are right. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> the house and senate will both be gaveling in today. the house for a brief pro forma session at noon eastern with no legislative business scheduled. later this week members will work on federal spending for fiscal year 2012, and you can watch the house live on our companion network, c-span.

the senate also gavels in today, 2 p.m. eastern, for general speeches, and they'll turn to legislative work at 4:30 when lawmakers will consider extending certain trade preferences with a vote on that measure scheduled for 5:30. this is the first step congress needs to take to eventually consider trade agreements for three countries, and you can watch the senate live right here on c-span2. and we'll be live online today with ellen schultz, the author of "retirement heist," looking at how employers have used employee pension plans over the past several decades. the discussion is hosted by the national retiree legislative network, and you can watch that live online at 5 p.m. eastern at booktv.org. and join us tonight for "the communicators," our weekly look at telecommunications issues. our focus will be the proposed at&t/t-mobile merger starting at 8 p.m. eastern here on c-span2. >> you're watching c-span2 with

politics and public affairs, weekdays featuring live coverage of the u.s. senate. on weeknights watch key public policy events, and every weekend the latest nonfiction authors and books on booktv. you can see past programs and get our schedules at our web site, and you can join in the conversation on social media sites. >> next, former john mccain adviser douglas holtz-eakin leading a panel discussion with andy stern from the service employees international union and "the washington post"'s political writer, chrissy his saw. this is just over 35 minutes. >> for our, for the panel portion of our program, i'm going to go ahead and introduce jim pethokoukis for reuters breaking views and the commentary wing of reuters. jim? we can get right into it. there you go, thanks.

>> doug, i thought you told me we were going to be talking about the hpv vaccine and the council on social security. [laughter] i'm unprepared to talk about jobs and the economy. >> it is, no surprise, online. >> you're known for that. i'm jim pethokoukis, i'm the washington columnist for reuters, breaking views, we're the commentary view. i'm also a cnbc contributor, so we are ending this thing on time at 10:30 whether the majority leader is here or not, though i'm sure he will be. look forward to having a great dialogue today with doug and both andy stern about jobs, the economy, the political landscape , and as the saying goes, you can't -- and chris cillizza from "the washington post" as well who has managed to show up. excellent.

you can't do policy without politics so, hopefully, we're going to get plenty of both over the next 40 minutes or so. but first i just wanted to take a couple of quick minutes to give a bit of context of where i think we're at and hopefully drive the conversation just a little bit. as director sperling just said, the president has a $450 billion jobs bill, and i'm sure majority leader cantor will discuss republican plans as well, how he wants to get the economy moving. but it's sort of been my theory of the case here is that what we don't have is a short-term problem, but really more of a long-term economic problem. like gallagher, i'm a bit of a prop comic. i like to bring a prop here. and what i have, i dug this thing out of my files yesterday. it's called beyond 2000. it's 150-page report dated december 1999 looking forward over the next ten years to 2010 what the economy and stock market might hold. it's from lehman brothers --

[laughter] and i'm going to say that of their many be predictions, they did not predict their own demise, that they would actually not make it to 2010. [laughter] and that is not the only bad prediction in this fantastic report. they predicted microsoft would become the world's first trillion company, didn't happen. they predicted gold to be under $150 an ounce in 2010, slightly, slightly higher than $150 an ounce, and this whole report one mention of china, no mentions of apple. they also have a great, they also say the u.s. budget surplus will continue to build throughout the decade. but my favorite lehman prediction, the one probably most relevant to us here today is that the u.s. economy will be even stronger in the 2000s than in the 1990s, and we would see 4% growth, very stable growth, low inflation, basically, off to the races. clearly, that also has not happened.

even before the great recession, the 2000s not a great decade for growth, it was subpar growth, and what growth we did have seemed to be driven by a housing bubble and a financial banking bubble really. and the current recovery as director sperling said is not a strong recovery, it's been abnormally weak. and it's weak even without and hopefully this won't happen, but some sort of financial shock to what we're seeing in europe right now. and to the extent that the new stimulus can boost the economy, one of the, one of the economic firms director sperling mentioned was the macroeconomic advisers which is a very well-regarded consulting firm. they said they think the stimulus would pass, they also thought sort of stealing growth from 2013 and 2014 which sort of gets back to my point that i think we really have a longer-term economic problem, not just a short-term problem. so i'm interested to hear what

our panelists say about how the current stimulus and current other ideas from republicans will play into this economic problem if it's, indeed, a longer-term economic problem. so i guess we'll start with andy first. >> let me just pick up where jim left off in terms of both talking about this in the short and long run. and let me just offer two contexts for this discussion. one, i love this country, i happen to be old-fashioned and believe america's a gift. and its greatest gift is the american dream, that every -- for an enduring, special, historical period of time every generation of children have done better than their parents up until now. but when 80% of americans say their kids are going to do worse than they are, that's not the america we want. this is not a democrat or republican business, labor, it's an american problem. context two is what i think i want to follow up on what jim

said. this is truly an american revolutionary moment. this is a revolutionary moment, and i'm not talking about the tea party or president obama being a socialist. i'm talking about an economic revolutionary moment which those predictions, i think, say a lot about. there have only been three economic revolutions in world history. with the agricultural we got 3,000 years to transition. with the industrial we got 300 years. this is the thinks economic revolution -- third economic revolution, no single generation have witnessed this much change in a single lifetime as we go from a national to international economy. this revolution's only taking 30 years, and many of the things that aren't talked about will continue to happen because we can't just predict the future. and what that really means is for all the people in this room on this stage who believe that we should go back to the era of ronald reagan, back to the roosevelt era, keynesian -- we're not going backwards anywhere. there's only the way to go is forward into the future. we will not relive the 20th century with market

fundamentalists, trickle-down economics, it is not going to work in the 31st century. andy gross, the founder of intel, just wrote this: our fundamental economic beliefs to an unquestioned truism is that the free market is the best of all economic systems. and many people on this stage will say the freer the better. our generation has seen the decisive victory of free market principles over planned economies, so we stick with this belief largely oblivious to emerging evidence that while free markets did beat planned economies, there may be even room for a modification that is even better. such evidence stares at us from the performance of several asian countries in the past few decades. these countries seem to understand that job creation must be the number one objective to have state economic policy. china, brazil, singapore,

germany, india have a very different idea about the future in terms of countries being teams, and our team usa has a market fundamentalist losing proposition for ourselves and our children in the future. so what do we need to do in the short run? there's three things, i think, that don't cost any government money. one doug and i agree on which is the repatriation of foreign profits that are sitting overseas. i think they need to be used, and i've proposed to fund a permanent infrastructure so -- bank so we don't continue to have these kind of jolts into our economy. but a long-term plan to do it. two, i think, is what glenn hubbard and his colleagues talked about and what the president has tonighted, i think, is an important way forward, and finally these government contracts that allow government to use the private sector and the government to use private financing to rehabilitate public entities and pay for the cost is a good way forward. and i think gene sperling, i

won't repeat it, laid out pretty moderate ideas about things that i think seem reasonable to do, and at least i would say a very provocative set of choices that the country needs to make about how we're going to pay for them. in the long run, though, i just want to say this to answer your question. one is we have a health care system that's irresponsible. we spend 5-7% more than any other industrialized nation in the world. every country in the world, industrial nation, has a national health care system. not single-payer. ask newt gingrich about switzerland. all of them cost 5-7% of gdp less. that's $700 billion a year to a trillion dollars a year, and in the washington budget speak that's $7 trillion to $10 trillion in savings. we have a retirement system where george bush was half right which was to create a national private account, wealth-building account. he just funded it the wrong way out of social security. but there is a way that countries around the world, and not a one glob a lifetime -- job

in a lifetime economy have found ways with professional management, no withdrawals and anewtization in the end. we have the only industrialed nation that don't have a value-added tax, the most efficient tax regime of countries around the world. lots of things like lawyers and investment banker services that we only tax retail sales at the end product, but it also taxes imports, and it doesn't tax exports. we are the only country in the world that have our imports come in for free and our exports taxed. it's a wto-compliant, pro-american trade policy that could end the first $100,000 of income tax, could lower the income tax for 10%. we are idiots for not doing what the rest of the world has done. we have a trade regime where the countries we trade with don't manipulate their currency, steal our technology. and in the case of china, we talk about, well, we need a

pro-america policy, 98% of the software in the chinese government is pirated. is pirated. we don't have a free trade policy, we have a sucker trade policy, and until we enforce our trade agreements and, finally, americans need a raise. you cannot have a society with this amount of inequality, you cannot count on trickle-down economics to work. workers haven't gotten a raise in real terms in 30 years. they're not going to get them just by good luck or market fundamentals. it takes thinking about how we do this and lots of different kinds of institutions. so we need a 21st century short and long-term plan, and if not, our children and our grandchildren will not live the american dream. >> okay, doug. [laughter] i'm going to give, i want to give him the political -- which of these fantastic ideas are actually possible? i'm not ready for your fantastic ideas. >> let me, first, exercise my prerogative as president of

the -- [inaudible] for thanking everyone for coming today. thanking gene, thanking andy for being more caffeinated than me. [laughter] and chris and jim for their participation and, in advance, eric cantor. this is, obviously, an important topic. i'm going to agree and disagree with mr. stern, to some extent. earlier i put out what i called the four principles, and principle number one is no u-turns meaning no more of this turn it on, turn it off, keynesian-style stimulus. i understand the rationale for that in 2009 when the world appears to be falling apart completely, but we are well past that. we have a fundamental growth problem. we have been growing too slowly for too long, and we ought to be thinking about strategies to raise permanently the long-run growth rate, not steal something from 2013 and 2012. i think that's a mistake. second is by process of elimination you have to focus on the business sector in the united states. i mean, this is, this is not

deep economics. this is casablanca. you round up the suspects. the household sector's broke and needs jobs. the government sector, broke. the export sector, be great if we could export our way to economic growth, but every other country on the planet's trying to do that, so it's not going to add up very well. and that leaves you with the business sector. and you have to focus policies which will give them genuine incentives to hire people, give them raises and do it for the long run. and that's missing. third, anything you do should in a realistic way attack the debt explosion. we are on a trajectory to have a sovereign debt crisis. erskine bowles, chairman of the bowles-simpson commission called it the most predictable crisis in history. he's right. it is not a pro-growth, pro-jobs strategy to have a sovereign debt crisis. and it does not engender good economic performance if a company is trying to decide to locate in the u.s. or somewhere

else, and they see us heading straightforward this type of fiasco. any jobs plan has to be serious about the debt crisis, and that means you go to the playbook that i think the bowles-simpson commission laid out very clearly. what is politically feasible, and what do we need to do? we need to recognize this is an actual moment of truth, we don't have time to put this off. we need to undertake spending reforms. this is a spending problem. it's all spending. defense, nondefense and in particular into it almosts, that mean -- entitlements all have to be on the table. and if you want to talk about revenues, you have to have a better tax system. without endorsing the specifics of the fact, we have a terrible tax system, and we need an international tax reform in a deep and permanent way right now. we are driving the major, successful companies that have made this country great offshore, and it makes no sense to do that particularly at a time when we need jobs. and then last, we really do need to have a plan.

we have to clarify the trajectory of future policy. so it doesn't do any good, in my case, in my view, for example, for the administration to say, hey, you know, we're going to reduce the deductibility to the 28% bracket because that's sort of like tax reform. without saying what to you really want for tax reform and where are we going, that doesn't help, that harms. if something shouldn't be deducted at the 35%, why should it be deducted at the 28% rate? to me, we can talk about the specifics of the american jobs act, but i think the problem is that growth is a philosophy. growth is a commitment, whether you call it team usa, whatever. it is a commitment at every policy juncture to choosing growth over other agendas, and you cannot, as this administration has done, choose -- perhaps for legitimate reasons, a green agenda at the epa over growth, a union agenda

in trade agreements and in the nlrb over growth, promise to raise taxes and then turn around and come out and say, hey, we're going to have growth, we have this plan, this bill. growth is not a bill. it's kind of like taking out the defibrillator paddles and trying to jump-start the guy back to life in a room with no oxygen. we need to provide an environment and make a commitment to it. so that's what we should be trying to do now. over the long term, a lot of things andy said are right. we need a fundamental strategy that has to do with having high quality infrastructure, but that's not a stimulus issue. they keep trying to jam it in the wrong place. have a commitment to real programs that really fund real infrastructure. we need a commitment to high quality education. that's not a stimulus strategy, that should be a commitment to educational reform that is not about money. we spend a lot of money on education, we just don't get our money's worth. we should do better on that. and is we do need a strategy on

inequality. and i would argue most of the things the administration is trying to do on distributional issues are trying to plug the dike long after it is obsolete. we need to get ahead of the curve and give people skills, a retirement income by prefunding their retirement with accounts, and andy and i would con country or than -- concur on that. there are things that can be done now, but they should be generally consistent with the long term. not half measures. >> chris, about that rag tag collection of measures, the white house seemed to be making the case yesterday that the political environment has improved markedly since this summer and that it's going to be a lot easier to get, you know, their ideas and i don't know what other ideas through, debt reduction ideas. i wonder if you could handicap the political prospects today, how that might also intersect with this super debt committee. >> sure. first of all, let me apologize

for being late. i had the confluence of my son's first day of school, and an accident -- not an accident by me, but an accident on the gw parkway. someone once told me political reporters are the dumb jocks of the reporting world, i always feel that way when i'm up with these folks. [laughter] valuation, annuityization. barack obama -- [laughter] so let me start with that. so i've sufficiently lowered expectations. i don't agree with the obama administration that the political environment has gotten significantly better to pass the american jobs act. um, look, sometimes in politics saying it can make it true. i deal in the world, and i think it's frustrating a lot of people, but i deal in the world where perception sometimes matters more than reality, i think that's particularly

relevant when you're talking about the economy because how people feel about the economy in political terms often matters more than the actual economy. economists, i think, roll their eyes, and these two guys may roll their eyes. the unemployment rate when it comes out in the bureau of labor statistics every friday, the first friday of every month, i think for most people who know anything beyond what they learned in microeconomics in high school, the unemployment rate is viewed as kind of the most basic measure possible of things, and maybe not even a great measure. but for your average person they watch the news, thankfully, they still read newspapers of some sort or the web. and that's the number that they consume, and they see that. and so, obviously, a few fridays ago was not a very good moment for the obama administration, unemployment staying at 9.1%, zero jobs created. it's hard to build momentum off of that. i think what the obama administration is trying to do

politically, actually, i think this is smart, is they're trying to put some urgency to it which is, you know, running against congress is not a bad thing at the moment. i jotted down a few numbers. so president obama's basically under 40% approval, and this is been about 100 polls where he's at 39% in terms of his handling of the economy. congress is at 15%, and i'm giving them the benefit of the doubt. they are worse than 15% in some polls, but they're around 15%. so running against congress is not the worst thing. expressing urgency is smart politically. i thought one of president obama's best lines in his speech last week, and he clearly thinks so because he said it again yesterday, and then joe biden said it in an interview with john king yesterday is there's 14 months until the next election, the american people don't have 14 months to wait. smart. look nonpolitical, put the ball in the court of congress and try to force them to do something. i think it was, i think the question now is, is there, jim,

to your point, is there enough political pressure from the outside to get them to do something? look, if you look back at what's happened in big legislation over the last year at least, i think most democrats would say president obama's compromised too much. there are some in the republican party who would say house republicans have compromised too much. but i think if you went, if you gave it the most honest analysis that you could, president obama has moved more than congressional republicans. is that the case now? is he going to -- he's clearly selling this in a different way than he sold the health care bill. this is his bill. this is not a bill of congress. he is going to ohio, he is going to north carolina, he is going to places to sell it. he said this that speech in what i thought was the most fascinating line, i will go to every corner of the country to make the case. obviously, they would not call that a threat, but that is what amounts to a political threat, that i will come into your district or your state, and i will say why this is important, and you are blocking jobs being created. so they're taking a more

aggressive approach. i think that's the right approach to take. i just, i think so much depends on whether republicans feel at all, um, they feel as though doing this is the right thing both from a policy and a political perspective and how much they're willing to compromise. and that we just don't know yet. i think cantor and boehner coming out with statements that were relatively conciliatory, again, is just about positioning in the politics at the moment. it's so today if you don't really want -- if president says this is going to commit jobs, you don't want to run against that. i don't know how much that actually tells us until, frankly, until the 19th when we expect president obama to propose how he's going to pay for this. remember, the big point was everything's going to be paid for. it appears that's going to be a significant amount in raising

taxes on the wealthy. i don't know how conciliatory that tone will stay once we see how they're going to offset the expenditures in the bill. so i'm not optimistic, i guess i'm pessimistic by nature because i think if you've watched politics for the last few years, you would be pessimistic too. it doesn't mean big things can't happen, but i tend to see this like i see almost anything this close to an election. i say this close to an election because, in truth n a four-year cycle we're relatively close to a presidential election. i see politics in everything in these things, and i think there will be a significant amount of political positioning on both sides as they try to win the issue. and i know that's, again, a cynical take, and it doesn't mean something can't happen. but the idea that this policy debate is divorced from politics, to me, is a fantasy. >> just real quick, how much flexibility do you think the administration will show on adjusting this plan? >> yeah. >> some of the ideas mentioned