the critical infrasucture, such as our transportation system, our nuclear power plant, the electric grid, our financial systems. go ththto oflgsticane tm liebermaand i have championed.

despite the fact that dhs has made considerable strides over the past decade, it stillhsa to understand what challenges the department aphasic facing, and to prioritize our limited an a to better measure what has worked and what has not. to do so requires metrics and accountability has been chalnged hauungxperts here with us to help in evaluating the department's progress, and its future direction. thank you mr. chaian. >> thanks very hah,sar

in r titsdiht to isgrom jane harman , congresswoman harman and myself have three of what we used tocall day enough for-- mubt ulsa h l ur aur] what i am referring to in this inside conversation is that we were privileged to constut me eaiop maio t 9/11 legislation which followed the creation of the department of homeland security, and i've known ane before but have tten to kn hertlymier ee her. [laughter] she comes to us -- i ake liberty with friends.

she comes to us today as the president of the woodrow wilson center. cote hancu inthe ous iu omeeinig information sharing and terrorism risk assessment and his ranking member of the house permanent committee select committee on intelligence. so, i am really delighd that you could kt, and e lcyo monw >>nk mr. chairman, and ranking member collins and friends for the opportunity to join you and to return to capil hill to testify on a toc i am pssionate about, which is the ecurityo u me. m hnod ostng at myrtle allen who is here in official disguise and mr. skinner. they have far more hands-on ioperience with this topic than reedovmn y i

lieve shows that by partisanship indeed try partisanship is possible. we had a good deed going during my nine terms in e house, and our gislive eforyu idld ina rlt d special times. well over ten yearsgo, my goodness how time flies, i join you, mr. chairman, in a little band o legilators who foa holacioma ns tftth/. what we had in mind was far less ambitious than the plan ultimately sketched out by then white house chief of staff andy card. as ircwe nionero thnce ae to enac into law as a 2004 intelligence reform act. by the way, yes, we were the big

40 long th pete hoekstra but i sorsw id 9% hee that two of the atthy bill passed. >> i want a note from this perspective that the women in their room laughed at that. [laughter] sth ste e mr carper lghed. coming through. i always thought of you as the fab four. >> back to the homeland bill -- [laughter] i remember th onc ewhi ancearonded to embrace it because that would ensure presidential support, and so it was. although the dhs comise 22 departmes as senat olns toogatod the four

main directorates, bordernd transportation security, emergency preparedness, science technology and information, sciencantechnogy a inrmatn anis intrreti. rmation analysis was supposed to analyze intelligence and information from other agencies as i think you said including the cia, the dia and nsa involving threats to the vuabie tenonvate deteee be doing. emergency preparedness would oversee domestic disaster response and training, border security would streamline the entries in the abente scificecog ss lym preto ie do re h homeland. while the initial strcture more often to something different, and we all learned if we didn't ow it before that merging government functions are difficulties with the threats

against us aeeoving n o soi mpnttths t tyu have suggested. while dhs has experienced a real success there have also been by the call hiccups and significant gring pains. it's certainly ot he fir pantrui rb mytoneh o thleweshould not rearrange the chairs again. what we should do is make an assessment of what works and what doesn't. here are some of the functions that exece well. styeas osio bo pct s t31 nids om the u.s. found aircraft at the airports and cpb was able to process ore than 15 million travelers at 15 prepare vince locations in the samyear. it's like in elfrys aw fu mlen h secure fight. the program screening all

passengers on flights from within or down from the u.s. against government to or watch list as extending the borders by using real time threat based muleer sitiddion t in the department expanded "if you see something, say something" campaign. to the dozens of states, cities and transit systems, federal buildings etc.. local residents are the first line of defense again the pls in this countrbecae eyko htoko heehbh. that why i think the fusion centers are so impornt. lester the colorado fusion senator helped identify and attempted bombing susect and work tether to share tips and leads necessarytcni the 10 tes wre bader. there are problems with them which we can discuss but some are terrific. finally the office of and for structure protection conducted more than 1900 secure esurveys from 2500 portility

intrreidfys oniomo poteiagps but the challenges are significant. i don't want to abuse my time, so i will rush through them. first the function has never fully developed. teisretans treason is that erichi the tiol counterterrorism center outside of the department of homeland security. so a significant portion of the jurisdiction moved out. intelligence reports are meant to be consumed sta and caw rct ma s ti cidha dhpoa spam cluttering overflowing in boxes. in many cases law enforcement still reports the state fusion centers provide bter information. the fiscal ar 1t1 tllce area neing enhancement and we can discuss that if you want to the estimate excuse me a seond.

if you want to take a few extr minutes, you should go ahead and do that. thankou. near mew ng rtatclly su to local law enforcement and i was the point of establishing the interagency for the assessment and coordinating group which i understanding may suerso udgps ng itttou . rmuss ti out there for fighting to restore the nds that may be taken away. second the homeland mission is so large that did the department must assess where it can be most effective and whereit . r aiie ht s lvee h leaer i preventing cyberattack. but i do think it can perform a mission that you and your legislation suggests and i think it is absolutely crual that the legislatio rnc

t stt rt itic ifrastructure. so, i support your bill over the one the house has been considering and i hope the congress will move forward on thlegislation prompy. irintogha be a vy disappointing player in the process, not the committee that congress has failed to reorganizeits committee structure and the homeland jurisdiction here, but anre significant inteosi re tan0h o committees and subcommittees we have simplified that somewhat but not nough. the one recommendation of the 9/11 commission that remains rmmtio reorganize congress. so, what are the biggest opportunities? first, while the department should be praised for

overhauling its civil liberties options which i know you care about ishouldn't tpte uadiuge white house to appoint the membership of the privacy and civil liberties oversight board which is mandated in the 2004 law and the fuoninhiistration tatd nitiinally all the members of the nominated, they've been reported from the committee that they are not confirmed. so we don't have that function yet. second, dh should do much more to reduce er classification of llce pa ec e oel classification acof 20 but very little has happened to implement it and i think it should be a high pretty. finally, the secretary must continue to be the face of homeland ecurity. ggd se the

average coo with threat wants just as he was the nation's most trusted antismoking crusader and frankly this reminds me of a kind of silly thi oneth thmeuy inrm the department saying but we were moving from perriello to dark yellow, and i commented that the homeland secretary shouldn't be anne desnendta pt isme thin hisre are some homeland functions that only the secretary can carry out and one of them is being the voice to warn the rest of us of the threats we face and to prepare us. in conclusion as y 9/.isu an dhs deserves a real credit but so does this commiee. as you said soon you will join the ranks of what i would call

policy wonks and grandparents we hithpentis re tan mber call went break call roentgens record? today. 5,000. can we all applaud you? [applause] both of you bring such skill and dedication to this work. i strongly doubt that your new role will dimiish your passion, d neainss ng s er alsltey k u for the opportunity to testify. capkro coadtching tv today that ybhacause as he circled the field in the crowd i

began to cry nowasomething that i just want to draw attention to in the unfinished work the dhs has come and you cited some statistics that i dn't cite about borer prtin lt noi coyows this, but people ought to have a greater sense of confidence when they get on a pne. last year cbp border proection stopped more than 3100 of the aift foreign airports for national security reasons, and that is all but 50 million travelers at the appearance

it vspc dthe cleaeds system and implementation of the systems that make that happen, but we are all savor as a result of it. thank you very much for your thoughtful testimony. next come admira thad allen serves as th comandant o e asarrm6 0 as we all remember, he led the federal government response to hurricane katrina and the deepwater horizon oilspillad shwas hsnulou o ano e american people that somebody really was in charge and was effectively award a response averts to the re wa moment.fered ic admiral ellen, i believe he

suggested you may be undercover as a result of your facial hair and i know better that you are nocurrtly nivc idatz nhm incorporated. a ranking member collins, members of the committee, i have t bere thes harings tltianm ghtohr. isniiayn aughter] how about all the other times? [laughter] it's an honor to be here with jane harman andmy colleague s be a tems rt onac e,d ardrkvry oselon the lastten years over the evolution of the department homeland security. the perspectives i'm trying to bring this morning, mr. chairman, is one that is working this problem from the atimmnnout from thonset oft

wedbsn a ter the plachad gone to logan airport we closed the harbor at the tremendous challenge of the evacuating people lawful for manhattan and the woodrow wilson bridge and marked a sea change for the cot guardnd h we drs thalf n inter of 2002 as you talked about. there was mu discussion about how to abrogate these types of functions and increasthe security for the unit states. i onsulted with admiral jams londs kof inerll avn unn sthe representative harman said, and i believe as june of 2002 the administration passed a bill on the hill propong the creation of a new department it's important to have on the record there was an initial push as you kn to have the bill passed by the first anniversary of 9/11

that didn't hapen for a lot of reasons and you are familiar with that. whhel asd est in ti e ho ig it away in 2002. by one march the components movedor abayar. ca from the time of the enactment of the bill until the first component to move or for as little as three months when you read that fast you lthe anal oativ toa pni it and i have tked for years about how the conditions under which the department was formed are some of the ssues we have had to dea with turbeville leslatn hapass beten ionrsfr the

panel to come from a appointee's almost secretary ridge was on the day before he was required to become the secretary. we moved people for that have already been cofirmed because we can do hat, and it ook up to a yearo t soe h wee hedoe isye. ere was no appropriation so in addition to the money moved over from the legacy organization from the apartment wherethe were at, some of the new entity's we have to basically reprogram funds from across the government, and there was a fairly chaoticime ty to orza odprnt puge aheadquarters as emblematic of the would be the location that still exists in the department of the avenue complex and the unfortunate system situation where we are right now where we have been able to resolve the bee hahapped is we had the migration of the 22 agencies with a legac appropriation structures and internal support structures, different shared services and a

different mission support structures and the depament beeft aot uresocd h rn the component or need to run the department rest in the components and still do today, and i'm thinking about things like hum resource management, i.t., property management, so forth. the blocking and tackling of running agey in h vent habe tete in the department to try to tackle some of these problems that of the two most noteworthy are in the financial management system and ability to create the core accounting system. thotheone uld the h.yto hepro ss dent. these are emblematic in my view of the difficulty in whi you encounter when you try to do these things without preplanned and hought out. when the the decision the hell they had estabshed anonnnof o exutive order because thelaw

hadn't been enacted and making a handoff without causing duplicated work to refine won't dwell on the past but when i talk to folks about how the department ws formed i think we need to nerst te a ryfft a y le oatig forward. that said, as we move forward i think we need to understand that confronting the greater complexity kind of challenges us the way we think bout the department's missions, and i don't think we can look at them as a collection of compnentof diala ecnt mo eapch ovng forward. and i think that is the challenge trying to define the mission set because once you do that then you know the capabilities and competency that you need for the discussion that we can talk about the mission support function which hasn't tured wre ineeds to lwain h re c tju ce exples, they're has been a lot of talk about secure borders for protecting our orders or managing our borde and we think about it our borders are not a monolithic line drawn in it ia obination

ors uis 500th in authorities like the ocean which extend from the territorial sea to the limits of six economics and we also do many of our sovereign border functions for the analysis of data that facilates trd an whr reaat coming into the country. i think as we move forward, we need to understand thate need to take the collective threat environment out there and look at the authorities and jurisdictions in the department in a way that is mth. we havhersadiame sty vi that basically validated the budget priorities of most of which one the administration came into 2,009 which pretty much focused on terrorism and the border disasters and so forth. i think after ten years we need to pbly ke aook the some of the conforming legislation about the legacy authorities that have moved

over, and what do the aggregate authorities and jurisdictions of the components that have not sycophant wechanged since the department was ceatouce thri legveae demeo frd eeesemgireats as we look to the future. i think there's an opportunity to do that as we move through the second q h.r. it was my counl lives in the coast guard and the department is working o that but i think we need to take look atthng thctt iliency involves not only natural disasters but the interface of the human environment was the ever changing natural environment and to gain a strategic view on hw we approach the missions for the department of homeland security. anse timis up than ng hs in bwobed ke qussefr me. >> thanks very much. very helpful. richard skinner, wecome back. i'm sure it's always been a pleasure for you to testify before th committee. erveasct nal

thpanthmd rif 2,005 to 2011 and was the deputy chief from the department's inception in 2003 to the confirmation and oospaes skernsl futecmittee in carrying out its oversight responsibilities and he comes to us today as an independent ibacanent and we welcome you yo again. ranking member, and members of the committee. it is truly an honor to be here today. i mean i was excited about the opportunity to testify today, wiuca itgued panelbe i worked with admiral mollen over the years on the ing as one of the leaders in the department

of i've always admired and reected and i commend him for his service the coast guard and all he smphe asrd entbohond rind fng shortcomings and successes we tend to want to talk about the operational side of the house that this the border security trsportation ecuri, ou teenais, inatofoverlooked is the functions that are supporti all of that it is behind the scenesuch as the data that is a management support functions particularly management auition nantt.anend d emnt. these are the functions in my experience in the dhsconstitute the platform on which the platforms must operate and are critical to thsuccessful accomplishment of the parent'min. oes hlen

reer ie ge challenges that admiral allan hit one is when the functions were in fact shortchanged. we bughtvel eratnal seof2 fft ciutdi bring about management support functions to support those operations, and as a result we have been digging ourselves out of a hole ever since. now it has been ten years. yothink we would have made more progss than we should have omehn' ere aiety of reasons for that and all of it is cultural, a lot of it is budget issues, etc.. but the department is not where it should be as far as maintaing the effective nantsuppetit pptsn protecting our homeland. financial management is a good example, and this has been a

problem since stood up in 2003 21hepamease mes. for the very first time we are able to get qualified opinions on the balance sheet and reduce r management weaknesses from wess ivfrom 18 teri 'ssic bu is also unfortunate because we are not continuing to invest in taking our financial magement sysms the next step forward. inat fte inancialn've h il a management system, it's unlikely that the progress we have achieved over the last ten years, which has been slow, but that progress will t continue. the department in 20 decided to change the strategy for the finaial amt i ncrtipo erhan implement the

department wide integrated financial management solution which we know we have tried it twice. now they are taking a more disciplined and very pr te decentralized financial management system modernization of the component level. however, if we look at the 2012 budget, you will see that these initiatives hadbencrai. as result, they are held indefinitely. it is not now clear whether the department will resume its waters and modernization strategy. it's clear whether of a new centralized approach if and mameys c eeatimplemend wil lile, useful and timely information to make informed decisions about their limited resources. ..

for effective communications i think someone hit up on thatarlier toyo imrtitte c uneal- baxce information. still to this day remains

one of the department's biggest challenges. program offices continue develop i-t systems independently of the cio and theyave b s tad foion i-t approach. as a result civils are not integrated, do not meet user requirements and do not provide agency personnel and its external part necessary ernsa carry o cric r plarsd weelve on monday the oig reported the i-t environment in aging i-t infrastructure within cpp does not fully support cpp's missn. according to the i rt ncalfth infrastructure have not been efficient to support the cpp's missions fully. a resulthe employees fix aly out in the field have work around as employed

alteativ slutis whi ndpp ability to perform its mission. aging infrastructure difficult to support, outded i-t strategic plans to gui investment decisions and stovepipe system development have have and continue to impede e dartmt'or moizteeit i-ys. third are with regards to acquisition management. as we all know those that were around here in 2003 we inherited such a large organization with close to a $40 billion budget but we had a skelet sff. sinut0% of oge te on contracts, very complex, large, contracts, yet we had a skelton staff to provide the oversight and to manage those ntracts. of course as a result a lot of things wen south on us ng program, the coast guard's deepwater program, which has since

been corrected but, the, the department of has regnized this and over thersan t t secretary, secretary napolitano and deputy secretary lute both showed aenuine commitment to improve the department's acquisition management functions and has be working veryard to do . hove much wai infu iemt these plans and address those challenges. most notably the department needs to identify and acquire the resources needed to implement its acquisition policies. the urgency and complity of the deparent' mission will ino dan lkntgr awe the department will continue to rely heavily on contractors to accomplish its multifaceted mission and will continue to improve or pursue high-risk, complex acisition programs efivmana t

cox rgll department will need to show a sustained commitment to improving its acquisition function, increase resources to manage tho complex ntras ad engen mierdvehe contractors work. finally i would just like to touch briefly upon grants manageme because this is something we spend billions of dollars on year in year out. i believe to date, since our, i03ou 2011 fema has distributed over $18 billion through the homeland security grantprogram. however, according to an oig report that again was just released this pas mony em eeinav the extent that homeland security grant funds enhanced the state's capability to preven, detour, respond to and

recover from terrorist acts, major disasters and other emerncies. cog theig rlthee fema needs to make improvements in strategic management, performance measures and oversight. many of the states can't demonstrate what progress they have made or what improvemen have actually esgrros.lt r teme of la security can not demonstrate how safer we are today as a result of spending billions and billions of dollars over the years. that needs to change. i think that the dtm to develop performance metrics and start holding the states accountable. without a bonafide performance measurement system it is impossible to determine whether our annual investments are actually impring ournation hondurtu anuleran

da fema and dhs lacks the tools necessary to make informed funding decisions. in today's economic climate it is crical fema concentrate its limited atoseret rthths to cry y. it is evident the department's senior management are well aware of these challenges and are attempting to fix them and they have actually made some headway. the question is, however, do the dartmenha t lvderth ussefo abyf department to do so is fragile. not only because of the early stage of the development that the initiaves are in, but also because of the government's buet constraints and the cut la ofesoueso emnnoriv d ayirnt of large government deficits and impending budget cuts, the new challenge will be to sustain the progress already ma and at the same time, continue to make necessary

improvements. unless the department and corestod rdha etoilbe cilitate solutions to strengthen the department's critical management functions and ultimately to insure the success of homeland security. that is my statement. i will wll beha .n a qioou uve helpful and very direct. i appreciate it a lot. we'll start with a seven-minute round of questions for each senator. striki of course, not surprising i suppose that ys hcu o,ee unfinished work, the deficiencies in the management operations of the department. and there is a natural tendency as one of you said, to foc on operations and operations have gone pretty ncseca ol ge efficiently, then the operation of the department

is obviously going to suffer. and i thought you were both, in my ownnd mr. skinner, were helpful d cossn an rcanunwh arent took shape which were quite hurried, both because of the sense of, threat that remned very much in the air after 9/11 aso jstec t in and, i have fallen into the habit of saying this was the most significant change in our national security apparatus cycendofe ndldr. aitoerith the 9/11 changes in the intelligence community it was but we did them very quickly. so, let me gi you a chance just to give a quick answer what you think are,

this coitteandhe thst irt w th t t department and we ought to do to improve the management functions of the department? in other words, is it, is it money? is it personnel? is it foromereas a lack nantcu n te done? . skinner, you want to start first? >> yeah, it is a variety of issues i think are holding us back. of course one of them is a resource issue. >> yeah. >>ut thhere's a l, ttob whel rece we given. we were given a lot of opportunities toake changes and we didn't take advantage of them and we more or less were spinning our wheels particularly in the areas of financial management but it is also a cultalssue on nto come together. and, and, realize that, that

we need to, for the good of the department and for the good of the country and for the food of the mission, that they havebeen ustofot the g ha to start working better together. they're going to have to start give up some much their turf so to speak and work in a more claborative, cooperative, integrated fashion. and i thinkthat is o of the big thgs tat a isrtarvi whouk the integration of our i-t systems. no one wants to, everyone agrees at e highest lel it needs to be done but when it gets down into the grassroots and it will erst ngmyratire puck tnc ng no i don't want to give up my systems to do this. >> right. >> we have to overcome that. >> and not surprising we watch that happen over the decades really in the integration of th department of dense for instance. at l t conyi i

ci 2, maybe all of them, have still, maintained too much of an independent management structure, including something as critical as i-t? >> yes. and the cio, when we t t,nvesu stevly this topic, needs to be given the authority to insure compliance and that people pantdo.teringintohe in their i-t enterprises -- >> is that something you think we should do legislatively? >> that is sething i think the department needs to do internally. >>nterlly admiral allen stated in his testimony there are three alternatives. one, top down, two bottom up,

or three, the least feasie would be etern driven and throh sln. canoe' yng we're no longer infants. we're teenagers. now we can comprehend what's right and what's wrong. unless we start doing something to insure that we're going to be moving in the right directionso that we can support our teoul h tobe brought into play. >> admiral allen, let me bring you into this because in your prepared remarks you focus on the need for improved unity of effort and operational coordinati within the departmt a mec we hadwa in mind in the creation of the department. so i wonder if you would talk a bit about what you think, if anything, we in congress should be doing to promote acilat te rt y a

>> mr. chairman, in regards to operational coordination and execution there have been several attempts to establish a robust planning and execution system that takes place through the tional operations center e hebls f the set wandmeou are department and a lot of people stayed in facilities where they were in washington and there was balkanization of the facilities. there are a lot of command centers, fusion centers around town that are independent of the department. yoowemu non onorti dquarters there is command center for coast guard head quarters. i'm not proposing we go to a join structure like we have in the military. that is far too are organized for the rest of the government to handle an a crdinatedte operations that are synchronized and to have the partment fulfill the promise created in the homeland security act not only in the department but as you said in your opening

remarks to basically kin of help coordinate that press rosshe fal gome att tcown tong reenvema talked about the information intelligence analysis and sharing thats necessary to create a common intelligence picture. but all this needs to come together in a fused operation center where all the agencies are represent toreat thadf uny temaosis a operational planning and coordination cell up there. there was headway made into the fall of 2008 but i think that needs to moveorward and it will require the components to ha paicipe th someki iou ,vepup e aclyorth prms that every day they can reach back to their components to create that unity of effort. >> i appreciate that answer. coresswoman harman, my time is running out but would you want to add anything to that? >>s. d ep secretary.

you can't legislate leadership but they need to articulate what the focus of the department is and presumably congress should support that articulatior rticate akit b thpant't d evhi llel and i would suggest that some of the functions should be narrowed, including the intel function. i think there is a huge role to collect information from all the agencies inside the departmentnd fuse that information tethebu i nconddsnkeel etwihe cia or compete with nctc. i think those better agencies are better able to do what they do and as part of the other structure we set up, this joint command over 1 agencies,e hondctin re mped better and there's an example of doing less but doing it in a much more effective way. >> good. thank yo >> if i could add a comment. >> please. >> to representative

harman's statement. nkbennkhe sgth in the nnantgeor e b a ongoing discussion whether or not there needs to be a domestic intelligence management function resident in the dni that could create that link and i think that is something that needs to be put in place. >> it would be in theni. >> right in the dni. ouot beomd. nc.erdin ss thois statutory authority. >> yes it is, sir. >> thank you. senator collins. >> thank you, mr. chairman. congresswoman harman, y have had extensi teen committee and i know you have continued your interest in homeland and national security at the wilson center. our committee oe de h et in to highlight possible vulnerabilities

that our country has and how we should respond to them. in your testimo you have ol oav ot that s has enemies. one of the problems that i believe dhs has is figuring out what is the greatest threat and what rrces ic ttsra o is it a weapon of mass destruction smuggle about -- smuggled into a cargo teisner our sor i c sit is it homegrown terrorism which we have done a great deal of work on at your suggestion i might add. is it a cyberatck? if you were secretary of th riy?nthatou

du ev the department's chief focus should be? >> that a very hard question. my first answer is, it shouldn't just be the department's responsility. it is aoverentwide reonsili weconaou of o director of national intelligence and i think part of the answer to tat, to your question, has to come from there. dhs has a role b notan exclusive ro and as i eprti business. certainly not in the cyberprevention business but it is much more in the consequence management business. so i think weave to keep in md that ourenems,at e ack u asim meticly. they're looking for our weakest links. if we announce we're

focusing on three things they will attack us in the fourth area so i don't think that is a great idea. i think we have to keep age and keeplookg. to mst nnd i gh p i thought you would be impressed. today's "washington post" has an article about cyber risks and there are these new gizmos that integrate everybody's information and that just makes richer ets t all uso tisa. i tersla where the homeland department, if your legislation passes, should beef up its intelligence and prevention and, well, and consequence management capability. there's one. inre. lolir lehan records who are radicaled on the internet. something i tried to work on, when i was in the house and still care about. i don't, i think the bigger attacks are harder to pu ofbecae weavebe lt core al qaeda.

that doesn't mean they can't happen and they might happen using ingredients inside our country. it is not always a border question. i mean, for example, someing havelws wodbo,e thadon materials and machines in hospitals, which could be compromisednd made into dirty bombs. so it's a huge proem but, we have to keepgile and rs hheeo ar ngts >>hank you. mr. skinner, i was interested when you described the gains made by the department as frage and i think that's a good caionary note to us. whthker the past decade of this department, i can come up, off the top of my head, with

numerous examples of failures in pruremts. .ngr the puffer machines at tsa the problems with improper and fraudulent payments in the wake of hurricane katrina, which proached a billion dollars that your tojroutso mhorkn. demend demes tniin this regard, that have failed. and you talked about some of those management failures and the importance ofhaving a robust acquisition staff. t anoer ita feg.aan and you were certainly a very effective watchdog who brought to light a lot of those problems. right now the departnt is wiout stani co yre with us what

qualities you think the administration and this committee should be looking for in a new inspector general? and if you cdo debe uopf thfi i m you also, this is not only a huge department, isn't the office of t ig one of the biggest in theederal government? >> yes, it . i thinit is pab the, ur largest ig in the federal government. in my, in my opinion the next ig is someone that will require extensive executive experienceith a demotrat lrs isota e f training, a leader. this is someone that has should have already denstrated their leadership abilitiesand,

someone would havee o rudndundprti sponhaca provide the leadership and the vision for the office. when you're dealing, because just like the department with its multimission, the ig within itself although it is aroos t rt, h multimissions with regards to policy evaluations with regards to financial audits. the back grounds, in the old days back the '50s and '60s when, i hate to say it when i entered the government was stricy tow eea yovebe able to recruit and motivate a whole wide range of people. people that areompetent in doing policy evaluations. people that can, that have at have plicbackgrounds. nitiacun. eson just the

audit and financial management. but the individual who leads this organization should have demonstrated a ece experience. and ould >> thank you. thank you, mr. chairman. >> thank you, senator collins. senator carper. >> againet me just reiterate our thanks to each of you for, notust f t o eb an for your willingnesso continue to serve our country and in different ways. i just want to follow up, if i could, briefly on a point that senator collins was making. plawhat i ser administration to administration. it is getting worse, not better. we're two or three years into this administration. we had gaping holes in major leadership roles bause we couldn't agree on or some

ul fe oh aisio notey cses when they did took forever to go through nomination process, confirmation process. we end up with big problems, in a number of departments. one of those is acquisition side in e department of defense. shadstraon w it we an t adston whoueejo weapon system cost overruns, growing about $400illion, $400 billion and have to go 18 months without having a vacancy in top watchdog potion in the department defense i think is intme b t llwa making with respect to filling a position you once held and performed admirably. i don't they that the administration is gog to come back to us, say, well, th is wwe ink out e e on o, t right kind of person to fill this role. you've given us ideas what

the administration should be looking for and they certainly make sense but this is got to be a priority and i know something you re a lot about d rket wst administration to get it done. maybe one of these deals that gets done after the election but it is real important. we had a fair amount of discussion, these are great hearings. these are great hearings. i thk it is unfortunate en'tere.r coeagu chanorrong these for us and for our staffs. at a hearing we had a couple days ago, with, four or five panelists there was a fair amount of focus on cybersecurity and looking for a to-do list on rscounth jocc sng m left and senator lieberman over here to my right, our chairman and senator collins to try to see if the panel could give us some ideas what we could do to define the 80% and 70%we agree on d dat.

.heaotsto ill w lto ask, not a fair question i suspecfor mr. skinner but i think for congresswoman harman and admiral allen, in terms when you look at a different approaches, between the two mjor bills here in the, rt ban th leathser mccain and others worked on, where do we find the common ground? give us some advice on how to meld these togethers in ways that make sense. get that done this ye. >> wel, bng ba tg . w mi er but. unfortunately i think think the hangup this debate we keep having about the role of government. i thk the argume the better bill sponsor make have to be in the bill. if we're not protecting cyberthreats against critical infrastructure

we're not protecting the country. i'm there. i think that is right. i don't think it is a rebl o decrat arment leert pre he common defense. that is in the constitution. it is in the oath i took and you all still take. if we provide for the common defense we have to preprotect our critical infrastructure. o ysiie dg. y to keep that in the bill and i would negotiate on the other stuff and how information is shared. i kw that is one of issues that some of the outside groups are concerned about is, violation of privacy. but of course again, if we bes d wacyndi heevernment develop the regulations that would be appropriate to implement, the cyber bill but with no cyber bill as keith alexander has said, just recently, our country os uho havey vulnerabl and tt oh offensive

and defensive cyber understand the capable -- capability of this tool now. just one final point, 10 years o, whatever, all th tim o wnwee lkouis u w n'ow what capability existed then. certainly there was cyber but i think we were in the, you know, sort of so prehistoric age, thats iseavo wge b, vo and this is a core requirement i think now for the meland department and it is overdue that, that some strong legislation should pass. >> all right. thank you. milen? lpou t e. iig t this is really question about what is inherently governmental and what is the role of government. we have a really complex regulatory environment we

always have these questions. i'm sure the same questions resed en tle heri itr h sh b dgdic thgovernment should be doing. we face some of the same problems and challenges looking at port security right after 9/11. i will tell you this. we used to say you've seen e port you've seen one port. i have guess you could say if you've se onesect ven oct orer different variability for the markets to clear this type of functionality and protect their assets. in other cases there's not a market-drift reason to do that and there is probably a valid role for governmt. what we probably no dersnd wt arth daanfoce d en apply those standards to each sector and they produce a different outcome in each one but at least there's a standard way to think about it and move ahead. in some cases where there's noa market solution there isnitably roor rn. an rtthad ha l authorities to do

that. it becomes a matter of execution and proper oversight regarding a private citizen and personal information. we need a bill. i can't urge you more isr.ngly t get aill out tleratli ventom er regulatory stand that is requiring these audits and development of covered assets that are covered i your bull or infortion sharing or industry-led organizations i think that's something that needs to be eill moveshrou buts vente fs if the government to play that role is homeland security we should build on what is already done even if the progress we've seen to date has not been as significant as we think but we should move to pass a bill. thatis very hpful. e vencre at of convergeance of views here and panel here earlier this week. ves me not just cause for encourage maenl but, just a,-

ow cma i yent, strength in bucket list to-do list you want to check off before the end of the year. post office and plenty of time on thathouse of representatives continues to delay, del,epassgo a bill and passing it and continue to delay it and the postal service loses $25 million a day. makes no sense. i don't want to come back and have to deal with that next year. i'm sure senator collins and you might noteat u r . ipetove a ce s hnd m colleagues for a bit longer. but at the other one just crying out to get that done is cyber. crying out to get done. and my hope it will do that. if i could, just one ncluding thought. meatar tinexse like this we focus on stuff we haven't done well. . .

and to me surweespding outimes co-efftisai tthiff into this year. we have to figure how to raise revenues, how to spend more money cost effectively, and one of the veryurgent things for me, the creation of cfo, all federal agencies have to hv,

theyaveteatle nc bndan behold, secretary napolitano announced earlier this year, maybe late last year they will be auditabl way ahead department of defense. i think he can't manage what you n' mear d er m rehe t'se rgdwork that's been done in the last 10 years. we neenot lose sight of that. thank you all. >> thanks very much, senator carper. i just respond to question. i do have a bucket list, anda mecryoegeaniin i've engaged senl at least, formation of a buck list caucus. and i will tell you that at the top of the list is cybersecurity. senator kyl is wrking veryhard fompsethyhousa bue ri fhe iti think include cybersecurity and postal. incidentally, to say what i

think all the witnesses know, but can't be said too much, just reflecting on your strong statements about the ned to ha a cerseriillop noteworthy that this really is, unfortunately there seems to be somewhat of a partisan divid on this questi here in congress. among those who avehadt reonsilior natna last two administrations, that is the bush and obama administrations, there is ral unanimity of opinion that we've got to adopt a bill, and i think if i'm not stretching to say that they support a bl like e on tht cam oto it s's ou people in the current administration and the president, but secretar chertoff, admiral mcconnell likeleisure college, admiral allen, and stewart baker so heg sge0veshema

senate. >> we've said your leadership, senator collins, our leadership on posted of the only way w thinthere's a postal bill is to gt on thne,te d edot. ine iueth be 'vt get the bill on the floor. our leader and healthy the republican the police in that while we are here before august we actally do that. >> thank you. senator johnson, just thinki as we refer ocal ripken, iw a u h oe wih cipliecon this committee. which i appreciate. you've been really steadfast in your contributions. >> thank you, mr. chairman. and thank you senor collins, for holding this hearing. for someone nw, these are i'lani llpfu tonke ies for your time, your testimony, and also for your service to the country. as somebody new, i wasn'tround here, you were, i'd like to ask

each one of you, what was the primaraiol n f an, previous answer, issue and come you can tell me physical but also want you t acknowledge that was the reason but i will start with you, congresswoman harman. by the way, i wantosa thrk dbywe he c. speed i appreciate that. i remember the time vividly we were all here on 9/11, and i was then a very senior memberont wag heo ht tahiost people think was the target of the intended target of the fourth plane that went down in pennsylvania. so the foc was money. we no evacuation lan you. we unfortunaty edhese ding h itke he l iheay

eeless it was terrifying, which is the point of a terror attack. at any rate, i felt, i sort of know that chairman lieberman organization wasomplely adte tthw of an nd tng erent. we had missed clues, obviously. two of the hijackers wee living in plain sight in san diego, and the fbi didn't talk to the fbi, internally and, of corse, didn talto eia rw t blfa vee . hega s to somehow find a better way to put the government functions together, as i mentioned in my testimony. many of us thought there was a simpler way to do thisbut we embraced what president bush wosut than wausw wh soinne ka miln. >> senator, the concept of a border security agency predates 9/11. there were discussions about trying to do something like this clear back in the nixon

administration regarding order patrol othe southwes borde e coepislftvl. orromdao coast guard and someone who's worked with these agencies for nearly 40 years before i retired, the relationships between the coast guard, fema, immigration and customs have never been better. fema is a tter organization because they ar t--e co ar r. std hate rre katrina. i think it has also asked by senator lautenberg want to most of us think about leaving qt beuse user chairman. at the time i said we got o appropriions on time. m no seboan y e aal out bureaucratic war in the mid 1980s over who would do there in tradition and maritime interdiction in this country. it was ugly. that does not happen anymore. while there were overlaps and think to talk bt hw ecod oforome he auicruggles that i saw throughout my great have gone away.

>> that was how many agencies, about five your talking about? >> the original border secury, that's been a discussion that's someorfo fo ea >> a h ho any? >> i think there be talk about immigration, customs, coast guard, the organizations that have a physical presence. but it has been something that's been discussed for quitea while. >> oy, skinner. >> agrwt ra len eoecnep pre 9/11. as a medevac i think there was a bill that was introduced and got closeted for a couple years prior to 9/11. it was brought out, dusted off, ando thkthat started the ba rolng f getngil atwaethgh reo fast. quite frankly, the whole concept was to have unity effort, to bring together the different functions within governments so

they canork ttertoge only protect or prevent another terrorist attack, but also to develop the resilience and an ability torespond and recover from a terrorist attack should one occur. so it brghtoge t fft en h u o roof, one leadership with one common mission. that is to prevent, prott, and respond, recover and mitigate against errorist acbu sourisrs ermyne. my bias having been part of a small company that got bought by a large conglomerate and then emerged, i've gone through the merging process. on the far smaller scale. but ao understand that when yogo intlargorgazatis souch yu ohe s cttoward basically feeding the biggest -- feeding

the beast. i guess that's my question. have w created something that simply too big to anage? hdemeha ,0eo dos h overhead, and should we be taking a look at maybe splitting out some of those? ould we be merged some of these, take a look at, if it's, i guess was breaki dowthe los,noti, naalelncver that sherry. is there more intelligent way potentially take a look at this and have we created -- these agencies were large p.r. person to start with. now and make even larger. thwf too much, but fective? we made a tactical political decision that the going along with the president's proposal was the fastest, easiest way to get something to happen. pae have bn hu grong

bn er some functions are done well. yes, i would recommend narrowing some of the functions, bu i would be against my own view, rearnging the deck chairs again because i thinktha isan exempainl cio anis ll a respects becoming a cohesive organization. more leadership to integrate some functions that are still not integrated would be good. sustained adership in the nex exeistratiould waanreally has seved the function by march of protecting our country, along with oversight of congress but if i have to pick area to reornize right this minute it would be congress. i think is committeeshould have a lot more uisdiction d atru touid . ink tshrd disaggregate the conditions under which the department was formed i discussed earlier an

issue to talk about, about management and besidesn the span of control and so forth we are gng toveto ge over e t . thcntry specs the department is going to start functioning better and i think that's a mandate for the department. i think on the other hand i think there's a leadership managent imperative that hasn't been exhausted. i would uppo erat rm cntt in adstona ontinuity of the current administration of the leership management agenda that is fcus on the department, takes care of these basic exes and oh so blocking and tackling anything to we've done hat w wheheaedly with congresswoman harman. this is not the time to rearrange the deck chairs. if you study the history of the creation of the departmenof homeland security community understand the environmenthich thour,vr

upset with what happened in ireland and what happened in new york here, at the pentagon and also in pensylvania. this bill was pushed through very, ver quickly at a historic ba. itas wwet n opritnk it through so that we can prepare ourselves. we saw this at tsa when we stood up iring all the screeners and record time,nd as sul e dt ba a a at t mewh we stood up for a lot of r problems. when we didn't think it all the way through. we did not, for example, i said earlier we short change the court functions when we stood up to were brought in all the operions without hppor e aaemt po to back these operations. >> let me just close with an interesting article i read in "newsweek" were basically

secretary gates is talking that when he came i, secretary rumsfeld said 17 ltbetween smaecn h li. that's not money and the right direction in terms of efficiency and that'smy primary concern about the department -- >> the department has reduced demeadopty tusew it the present with congressional approval to reorganize, which they did. and they have actually removed latest. nothing to layers that remain need to be empowered, suppt rnarly in the management the progress that we've made today i think a substantial. i don't think the department is it a good job of marketing itself. it still has a long wa to go. the biggest that i think the partnt forucce rig thitethoai veeatte n h ability to make the improvements

they need. to move forward, and to address evolving threats. >> thanks a lot. thanyou, mr. chairman. >> thanks. thatas a really constructive exchange. anr err retiring class who is a characteristic would involve very constructively and audit committees to players ich is cybersecurity bill and the reform bill. so thank you fo that. setoak iurtuorss t yer uh m chairman, and also i think -- i thank senator collins also for her efforts on this committee. and frlinghsero inatpene here at dhs, and also o try to come about with some reform that can improve the effiency and

deliveryvsofti rt fur country. so i want to thank you very much for this opportunity. and i also want to take the time toank efderaworrs ouow, i've always been concerned about our human capital. and here it is, one of those tunsrefdra erhverond, nd i want to thank them for their response, call to service since september 11, 2001. and so here we are now examining what has apped ow can prov i'd like to ask congresswoman

harman come your written testimony notes improvements ur n t a tricyofcd ivan civil liberties, oversight board. i strongly agree. as you know, dramatic tehnical advances in the pastecad low sbtad s mens psonal information in new ways. so my question to you is, what thhsllacn y privacyalges re and is the department really equipped to address these challenges? >> well, thank you for the question,enator akaka.

and thewy, lfeodeo i su u nna lieberman that i'm really okay. and enjoying my lfe. on thi, i watched carefully asei seen progress and good fort in the privacy protection area. so i don't want to be critical. what bothers me as a more general matter is the absence of pe inse t xiv ch olcy s e of their as regulations are developed, or new actions are contemplated, who say wait a minute, there is another way to think about his,r there are re things to think ao because as i've often said, in fact ben franklin said it first, i'm sure better than on going to

say it, but security and liberty are not a zero-sum game. you ether getore of both or ss both. he fr ben hent. ounkths -s ae hreats against us, they will basically shredder constitution. none of us wants to do that. and if you are alternatively justunt, then after we're attacked, where tesla going to shreour nstitution. bad d. mbacntwe ca le nght rooms. at the right time. what dhs is doing inside of dhs is prettgood, although i av theltoinatms is, is collected, how long it can stay there, who has access to it, the usual stuff like that. but again i think, and i think th ohre, nn re n s n s

etthsts are working. is a couple of things there that i was able to stop. one of them was, i forget the name of the office, but it was going to task tlls caoufe lights, to accomplish certain homeland security missions over the continental united states. and that worried me because i didn't think the guidelineswere specif eugh. and what nded up happening wh apat oe,tofe ikw discontinued, which i thought was a very good outcome. >> thank you. congresswoman harman. po eesefrmon hatational journal" was almost two-thirds of respondents said that the government and businesses should

not be allowe to shae bersuritifrt us dtva d l liberties. you also note in your testimony that the need to protect personal information in the event of a cyber attack. iman, including robust privy and civil liberties safeguards in any cybersecurity se fslation, conidered one t ive mrnt what the final version of the legislation should look at, should look like i don't know, but again it's the same point, that security and libertyare t zero-me, w h hn aboo oe

information, as we all so ae blocking access by either busiss interes thaare gomentt pio k ga to all the dot space. these are serious tools. and the point of cybersecurity legislation, obviously iso oterl information, but also our government secrets. so that is the point of the legislation, but indviduals should not be forced by the legislation to share data that is unnecessary to be share t' ic. juav lat thbill authored by senator lieberman and senator collins is closer to what i think would keep our country safe and protect our critical

infrastructure. >> thank o. >>nkryh,at akaka. if the witnesses have time i have just one more line of questions. a little bit different. it builds on yesterday's hearing when we discussith eerts ditreg,e tt range of potential future homeland security threats. and i wanted to ask you what your assessment is of the current aailies h as idfy future threats. and then obviously to take actions to address them. and if it's not adequate, what we might do about it, i'll go down rw no eca a an internal

future planning initiative called project evergreen. and it like you to talk about that and how it migt relate, if it does, to dhs over l reom ar o nt behat? is there within dhs the capability to accurately, or adequately anyway, anticipate changing threats andresponse? >> i think i'm least qfied thipato awett caienbe in the operating mechanism of the department, but i think it's uneven, would be my answer. i think some threats are bette understood thanohrsndi ioinan t na collins, if we give a pat answer to that question, then the bad guys will somehow plan around us. we can't dothat. we have to beever at you in

bu'nk otong that allhetime. niecsme that good. the ones i've seen that i like best have to do with airple and airport security, which i think work very we, and we offered legislation,senator collins, and i come on por riwi nol, i believe admiral allen is all about that, but pushing borders out and layers of protection. and i think that would work pretty well. but i don't have to answer it threat across thewhole rage. adl.en. an you first question, about 10 years ago, about 12 year ago the coast guard initiate a project called the longview project and this was trying to look strategically into our future using whis n methods,nio panni leading complicated method to try to figure out what you

should do to plan for the future, and to summarize it, you get yoursenior leakers together, look at the conseqntial trends that are ou hrt eel teivrlha o t . then you reduce that to the four five highest risk or most consequential. venue isolate teams and they come up with strategies and how you would cope with that world. they don't talkto the other ones. when you bring them back and you compare what they all said a if you have five very ife ds th1 stte eyoeu e d through fourth in the center you know those are robust, applied to a variety of threats, something you should our look at as you try to look at on capabilities and competencies. the ast guard is on his third or fourth iteration. avedtmii e ern escaou it been ectomy helpful force but when i became chief after 9/11, i greater our peformance on 9/11 against what we thought was going to happen. we didn't know the events in new york were going to occur andae u

. dixe ohe that's what we didn't do it would have helped us if we attempted. my response was it's from the old measurable, who stole my cheese, what would you do if you were afraid. without it was very insightful. i iimywrn imy,er qus iwl r o ummarize it is a single here, you can stand at a port of entry and say what is it i should do. you can stand at a screening line either in the country or in dublinand say,whahudidgag inssrs tik e enean that we are both a physical and the virtual dimension of our borders, where we need to cover now sovereign responsibility for ease of explanation what what you say where the air land sea and space domain. tosdoma wavhoo went byber. th wedbe er about the deputy secretaries duets and. we need to interrupt the supply chain of trouble.

things like people,argo, nveyances but it's also weather, germs, ectrons and mone ihikweosar rsin nit onad the authorities and jurisdictions, as i alluded toearlier, at the departmental level and planning and policy d operational planning and coordination, how do we since those demands and those of iowa, dos?psenthest ehugh tem, polid t ng trade-offs based on risk of where you need o put resources, including redeploy workforce is on the southwest border, redeploy maritime forces, heightening the threat levels and evns,naonsecurity riryu takito the homeland security enterprise radical different than the collection of the authorities and jurisdictions of the components. >> thank you, you for that. allowed to think about. mr. skinner, do you have a reaction to thuen? wh-l hto t

>>t apretty good answer. >> it certain it was. as the ig come i do recall doing some reviews with the department to put in tsa and cbp. we're always looking for emerging threats because if the shut dowone ne ty wod fi terve mgle contraband or illegal items onto airplanes, or for our borders. so i know that from a stove pipe perspective they're always looking to what are th goi to do nxn h e ened hsteiq or strategic planning and strategic assessments of what our threats are, i'm not aware of that occurring witn the part of the that does not mean that it is not occurring. abthlvth. akoud keo i just dhs responsibility. this is a governmentwide responsibity and we have to rely heavily, i may, within the department on what's going on

outside government. andi think admiral allen put it th neliethw garner, the tv with what is going to our systems or was happening inside that cyber circle. so people need to have those expectations, this is a dhs reonsibity heorbi mistake just to focus on dhs. >> yeah, i agree. i just want to come back and ask you about question, admiral allen, about that exercise you nt through with the coast gud. i assume you're looking at a lot thimatse, seemt like they were relevant to the coast guard function. in other words, it seems to me that one of the things i would hope that dhs does is look at worldwiddemographic trends,o or erda disasters, environmental or meteorological to inspect the

think about the terrorism threat, what's happening out in the world that we may not be thinng about now tt nonetheless, or what's happening in t technicorha ybcvert o ep aiu,kow, planes and cyberspace work. >> that's what we tried to do. one of the scenarios was you try to drive a two port extremes. one is globalization were financial markets drive tothe point where it starts to question thealuef on anr isdeanht siy goes global and redefines sociopolitical boundaries and implications related to that. and natural disasters, nd what you do as you try to bringyu leaks intry to undstan thesishoseretnsntormpul you talk about fun agency standpoint it is a project called project arise with the state department tried to do this on an inner agency bases about 10 years ago. but it really never got the

traction inside e governmen itse nenand time. they require some championship at the leadership level, but it also allows you to learn about me junior people to take part in these things. as a leadership griing process. e our current ad ot u wos eta they thought might happen in a port after weapon of mass destruction event. you were able to see these people being very, very awful, very resourceful in that they bring their thinking to the problems. >> could iust add one thing? as we thik hs i,ge tha atastropc threats, it's still important to drill down on the smaller threats. senator collins mentioned the underwear omber, who was unable to dtonate, good new, abom e a isy. thwrtattrrat has evolved so that there can be internal bombs, mch like mules

carrying drugs, human mules carry drugs. that will evade some of our detection systems neerhaochat level i think us think that things of that kind of going to continue to happen as one particularomb maker in yemen who seems to be the ace bomb maker of altime is still ali ndelie ot aay tll others in this country. so it's not just a questio of borders. it's a question of very, very smart focus, thinking about what these people to do next. >> you mentioned technogi, mr. chairman. i think when you look at the coitolaeahngy battery technology and things like that, you start creating the art of the possible, and wait for threats can be applied in differentays but i thk there is a technological thing that we have to keep our eye on. >> i agree. this is a r,

veg itbi nt ndftr, the box from right now, probably will save us alot in the years ahea thank you very much. senator collins. >> thank you, mr. hairman. admirallean wve fu h r you some of the problems that existed prior to the deptmt of homeland security's creation to remind us that it isn't as if all these coaty rey ere working br them together made them not wo as well. nevertheless, as i was reading your testimony i could sse a demeouectngtraon with w h er for example, you talk about a lack of uniformity,

comparability and transparency in budget resentationsacross e dertme. saatharenhs gg to evolve in operational planning and mission execution coordination capability. and you say in your conclusion mething has to give. dotovee the problems that you illustrated in your writt testimony? >> if i could as it d in my written test that i would like to divideinto two entities one involves mission etionnd e famin ut. o twor vry y, you either ask your permission you support the nation. if you can expend what you're doing we made one of two mistake. you either haven't explained it out or we don't need your job. so i would like to give you to answer but on a miion suort site, let's go on opio acere i scondo oeg.

we move compont in the partment with different appropriation structures from the legacy departments i'm talking about and you're off my wi this guy talk bout approprinsevelojt yoedro oylv. you represent personal costs, operating costs, capital investment cost, i.t. cos himself with the right now because of the way the budgets were formed in the leacy bu sdad okatou cannotpu the aritf esna os salaries, operations and maintenance and capital investment. and this is something that, there are two sides to this. the administtion needs to put forward a budget that has ompalityn e way the numbersaeed,it pratatw e to understand and don't have to be flexibility to put this together with a comprehensive and undetandable basis by which to understand how we are funding

the department at he cost associate with it. that is something th does not need any leglatto h i pla g art on this, and on the. one key thing regarding this is the requirement of heland security act of a future years homend security plan like the future years defense plan. thffti btnver ralized that if t t t o a five year projection. but this really kills capital investment and acquisition management. we are breaches and acquisition programs that are budget induced, but you don't see that because it's never an open discussion about having a sustained,cnitar tadg. moncu sit everything you can be a better which is undergirded by operational coordination and plenty if you talk about threat of in prvate to discuss and all the different domains, that targeted at a component level. but we need gattpcy eof pamental level to try to

look at this as a port for to talk about future cases. to look at, how do you trade off looking for domains, germs, electrons, money, people, hao tepatond soforth bu bl drn ita few from the many that are out there that we have to do with every day. and we have to greater capacity and capability to do that close to the secretary pics of the secretary kennedy conequential thomncwith credibility across government. >> thank you. mr. skinner, you talked about how the department initially had 20 ah00fnt i.t.7000, ora programs, and that that had been narrowed dwn, bu they're still many different i.t. progra operating within the depatment.

and i was tikinghen ci job stk bu n between being part of a great big organization versus a smaller organizion, which can be more efficient and effective, nebensd ttissue ththa department has to do with the amount of authority at the department level, the chief information officer should have, the chief financial office, all acitofcosionsi 'sr o that? should the secretary level positions have authority over the coponent agencie in the area ofifrt eol rxm >> if you go back and look at

some of the work that we have done over the years, we always made recommendations or we are concerned, one, that the cfo did not havenot only did not have haherote authorities to compel the components to followertain guidelines, or to perform any met in which the departmentith th secretary hadn co, asio. i reported and made recommendations that cio one, did not have sufficient resources and the office of the sago, as well did not have sufficient authoty to compel offices to folo rtalgine and direction. and the same holds true with the chief financial officer. all three i thought, we studied and made recommendations that

the chief finanal officer, aslle and authority to ensure compliance at the component level. one of the things i would like to add if had the oportunity, is that because when wes anthomntre brought together oftentimes because it's the environmente are living in and it was a very emotional environment,n, peio t h tht,ou now,now that we have homeland security, all of our problems are going to be solved we knew that was not going o happen, but the public did not know that the immediate advantage of tt. and sendly, the nation demands. att t im history, trump just good business practice. because we are saying weeks back

this to have and we expect to secure our borders, stop illegal immigration, make sure, everything had to be done yeerda a uttrmd - and made a lot of mistakes but and i think we learned from that. the dust to settle and i were able to analyze exactly what we've done, lessons learned, where do we want to go. now is just aatter of getting the resources to get one ththie adl allen -- >> go ba to senator johnson because your analogy, i distinctly of every right to ask that question. this is probably down without due dilince. wao gen jonn naca anc k tiify more. congresswoman harman, understanding have to leave soon but if you do we will understand, and still love you. > nos y can'

tho tn beoe. t, know,. >> thank you, mr. chairman. i love you, oo. >> thank you. >> if it's one more round of questions speeded senator johnson and then senator carper. >> i woudbhappy to >>t qik tt tbecy yesterday i was asking about the priorities and what we need to get them. i really came away from it as a first things went to set the standards. i just want quit ask all three of you, who do you believe is etcpa setting te stdaoncbcuy? >> i think the technical expertise on cybersecurity is the nsa, and should remain fair, they are best at it. in terms of being thepbli t tcbseitwork that is not in tl and, especially in the dot mil

and dot gov space,i think all my departmt has to do it. implement. bydn't hink ey ouldry ceecil ti t nsa. >> i tnk there's a role for government in oversight, the standard but if i can give you an analogy. thblowout preventer that sttwy a w u teeeriz industry standards. is not subject to independent third party inspection mandated by the government. it is now. so i think we need to understand what is the role of government, how to reprodue the effect but i think the should be overght. in'sogals e demef la cu. yoe standards can be part about the legislation is put together, but that haso be a firm. there has to be accountability and somebody has to be -- on behalf of the american people. >> i believe it's going to be a collaborative effort. i think it is aae demefomd as t on ea of

the those standards are not going to be set in stone. they're going to evolve over time because cybersecurity is evolving over time. as fars provide theorght ea heomc ieo e ble l rest within the department of homeland security. it is logical home for it. >> those are very government centric answers but is there anyone outside in terms of private sector in terms of the service provers? that perrman uce.t ad,ihnk asraind ic management, public administration is legislative and revelatory mission. ibook in the regular to refute for a couple of decad. one of the things that got to watch out for, you dn't is iouma pss soev edo that involves government has to kind of break the padigm and bring the best of the private sector in to get to a conclusion. whatwe want s a violent pakistan and the question is how to do it.

>> and if i could just add oe cnsad5% pretc ie and the private sector in this area is much more agile than governmensector. so this has to be a llaborative effort. i thought you were asking who should develop, or who should implement -idn'tnoor ve asauttadaai yeheisonsod step the standard or set of the process to the point i was making is that inside government, our technical competen on this is that the o t y anuk mhan. >>atka >> thank you very much, mr. chairman. i know time is valuable to congresswoman, and i just want to say, i don't have any more questions for you, if'm the e. meaning you can lead if you need

to. mr. skinner, i want to say that weave a great panelof leaders and exrtre todayd e unhou. mr. skinner, as you noted in your written testimony, dh has relied heavily o contractors since its inception. in particur an erce coras woinge-byde thfdrawr i have worked closely with the department on its efforts, the right size, federal employeest cora mic es yos,oeepartment currently have the right federal employee to contractor balance to achieve its mission in the future of? >> i cannly say at the time of

bu tae iei ar e initiatives to bring that right balance, and i have been reading reports and observing what is going on with the partment. i'm still mostly attacheeven though i'm er.d e haereips g t. t nevertheless, there's still an imbalance. i know recently the coast guard has made tremendous progrs in to dwhat vnmllhouse empoyee reotef in ct t tt same time they still do not have to and this is as late as, as recent as maybe two, three months ago that i re this, that this sufficientrsoc toplirsi e sil eon contractors to do what they would like to be doing themselves. but it is avery concerted

effort, and i think thishas en,and all the component comeresu of e ledersh that i enthplo and deputy secretary lew bring to the acquisition of management process. admiral allen, as you know, the department has woredve ha eit gi n apital functions. however, dhs still faces challenges and impement its departmental wide work objectives and goals h as an retention. what are the most pressing challenges facing the dhs workforce, and how do w addess themgig frd t h

>>nkurtesn, senator. i would add, and identified, i have provide the step and they can provide for the record, i testified in march before represented the calls subcommittee in the house homeland subcommittee on the rtners are publicsve nk aett pant erreen discussion on that there. i will try to highlight some of the issues here. some of the issues derive from the nature by which the department was formedthat i've talked about to let me get those re quily atheyre tenieconic ito oton whheigonvi nt away and we formed i.c.e. and cbp, we combine two different works forces that can from two different departments with different appropriation structures, different pay benefi strutures,dnt thability to try to estimate salaries and that confirmed continue to be a problem today,

in cbp puzzle of their of their salaries are funded by i think i was sick of different views our gacyhesere aiculre miiod br ths difficult environment to try to manage, and create human resource to adequa address and estmate salaries. the implications o that is not enough mny. todoth idleo ee. oykn that. it affects morale. so basically something structural issues will have an effect on the workforce, in my view. now separate from that, on the discussion of morale and the department from what i said my th ma u tests whe asa rw gdaev le ayproduct, performance in the workplace where employees feel they are empowered to have the right tools and understand that the leadership are doing the things to enable them to be successful, when you have that you have morale so ink wteetm t cti

h improve the performance that we've talked about here today, i think burrell becomes a natural byproduct of the. i think we should understand people usually leave that boss t i think there's an imperative on leadershp ish lwsgrha bld a department of homeland security program for senior executive we have a leing edge program for executives across the federal government. i played ought to be's leadership development programs that are created in te budget i t iratplr of r yo know, hand in hand every year to try to do with program funds or what's left over the end of the year. >> thank you very much for that. i'd like nly s mr. skinner, in particular, seeing as though we've had

morale problems ins rr egret and has been. and it seems as though it's a wos remdhshere te ok-- yo make it, exprsions on that, and the problem and the challenges we face, particularly in tsa? >>ati ersuie rarto tsa. i was aware, well aware of the turnover issues there, and we did discuss this with the tsa admistrators when i was there, in pivmein. e tebtah observed with regardo tsa is

the nature of its work. it's very tedious, hard work. and people's expectations when they take hese jobs are not always met. sely,rewsaa about leadership, there's a leadership up and down the chain of command. at the individual airports emselves. there was ften times a lack of leadership andeopls eash ets the leaders were not being met. but to i should come up with empirical information or a conclusion asto why there's a high, high turnover rate, i'm t y.tintaedn't do, or at least thank you very much, mr. chairman. >> face, senator akaka. is a been a very productive morning. i want to thank the thre witnesses to each of you in

differt ways has given great ani y i i ourcount de ino sin that direction by both your prepared testimony which is ry thoughtful, which will be part of the permanent record, and by your testimony this morning. you have given the committee a lot to thab i thk gee coittesh n en iolo t a. fnkly, i think you give both the current and new leadership of the department an agenda for action to continue what has been a firt ded f bee.y t or tolnswt to add anything? >> i just want to add my thanks to those and the chairman. i've been working with all three of our witnesses over the years, and it is terrific to have them exrdyeri and insights with our committee.

so thank you al. >> thank you. so the record of hearing will remain open for 15 days foany additional statements or ag t yerch e indoe [inaudible conversations] >> [inaudible conversations] >> still ahead here on c-span2, a house hearing on leaksof

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governors from across the country are meeting in williamsburg va for the annual meeting of the national log rt aionaia commtee ecy eks.

re months about u.s. drones and yemen, cyber attacks in iran and how the obamaadministration decides which terrorists to kill. wisconsicongressman james sensenbrennerchairs the so kennedyucitheg. >> within the last few monhs, the american people and the rest ofheorldwuecp rat orn to et operations of our armed forces in the national intelligence agency. it cooperated with u.s. forces and conducting the dna test to weledtheste osamabin laden. heteatpon iktas o the dre strikes and other countries by looking at mug shots and brief biographies of targets in that we have been

told represented te high school book your layout. wee neat teunid al sasuie to the iranian nuclear campaign with the suxnet virus. he had te asaultin t vu accidealade s wainto e rn 10 had acted quote with the. we've learned the united states computers with the flame virus. we have learned that the takedown oan aqaeda plot to blow up the u.s. bound airliner invoed in international sing trinrrt thth dob an oofze possessions the new bomb purportedly designed to go through airport security. we have also learned that the double agent belonged to another al, saudi arabia. we didn't learn of these sce coieiptsevad

from the wikileaks scandal. we learned through the pages of "the new york times" and other newspapers. the editors of "the new york times" and other papers publicly claimed manytimethatty emsees a hainga rm ng administration, "the new york times" and other newspapers savage president bush in the intelligence community for its tactics in the war on tour. how time have changed. here is a sample of headlines that accomtst on eit ek a ere waves of cyber attacks against iran the new york times. secret kill lsts proved a test of obama principals and will, the new york imes. stnes th ok fs.d els ci say, washington post. these are not the type of credible headlines that pursue the bush admintration officials. not only has the administration not complained about these

articl, but oicia mka seta six will kill osama bin laden available to a hollywood director screenwriter working on a movie about a successful raid. according to thpentagon and cirecords oti dia h he noma ou requests. before the leaders of the intelligence committee have condemned these leaks senator feinstein said that she was deeply disturbed by the week's righhe invstigatioandss e rneehs plou arnso po im to investigate the leaks and determine whether anyone from the administration shod be prosecuted. today we will have a look of the law, discuss the ptions avaible for investigating theksheouclosures tot rs national security, our relations with foreign government and

continued candor from embassy officials and foreign services. have had the following consequences. us etnct yiwho copted wit ribykiiti intelligence sources told us that the saudi arabian double agent was exposed because of news reports. as long as there have been governments, they're have been informationrotected by those vents isony n tscets kept it the media wants to expose them to condemn a president or to praise them. this isn't simply about keeping the government secrets secret. this is about the safety of americansover tal itno y pleasure to recognize for his opening statement the ranking member of the suommittee, the distinguished gentleman mr. scott. >> thank you mr. chairman and today we wil examine issues o

etttigome fotiomes ssd,s not classified. this hearing is in no small part by the recent spate of stories in the news that have appeared to have as their basis in operation of the week informationfowih th dego tad cywre ianad the mission to thwart a suicide bomber to the united states and the administration a process nominating individuals as targets to the drone strikes in yemen and pakistan. seeo y important to put them in context. there are two points to be made. first, the obama administratn's work to investigate and prosecute suspected leaks is without fer. prosutmr nal tritn ha ev rsdel administrations combined. attorney general eric holder has appointed the two u.s. attorneys to lead the federal

investigation inthe recent weeks. director of national intelligence james clapperas issued new rules to ease her intonel f defensemng community to conduct an independent administrative investigation even if the justice department declines to bring criminal charges in a specific case. the problem of the weeks of the fedegovements nonew e rees fte un trpbl. gleth this problem. the federal law since the first world war in the modern sense of leaking information to the press we have had work to balance the securit interests of the fran robust prsswith t prfo h p of 50 years. these problems are not a minimum to the solutions but particularly in light of the fact the we do not always agree on the scope of the problem. we all wan to protect the national sury so we can ke our ti af.

wecnot dgahe t ecienin system of self-government and the requires the public to be well informed. when a government offial weeks sensitive information to the press it regards the government coty y e lot pto h gnm discretion as to whether to prosecute the person for possibly serving the public interest? what about the leaks of information that do not implicate any security interest at all? over classification is n or lehe eera leg classified information with the intent to harm the united states and blowing the whistle on on wall collectivity that never should have been classified in the first place. congress will soon consider ads shcond asmof, emt be careful. any decision to lit to the public officials and private citizens may say about sensitive

government information must be balanced against the issuesf free speech, deprocs n he irt tet that some of the separation may reveal in proper or even criminal government actions. just as the office of the leiil urbls thef1917 did not foioe,re a b orn consequences that changes we make today it is easy to overreact to news stories and election year but we mst be partular in respto et people say atofgrn. k m hamayid back the balance ofy time. >> the chair of the full committee the gentleman from texas, mr. smith. >> thank you mr. chairman and i associate myself with your opening statement. mr. chrman gh si ima pa re o uriosety

pu americans and our allies at risk. natial security experts from both republican and democratic administrations have expressed outrage over the leaks andhe fec thaooingd rentge erns what sets fees' apart from other leaks that we've seen is that the media reports that many of them have comfrom highly placed administration officials ithis is true thians adstonfiae enth naety d ri american lives. national security operational details exist to meet the covert means of the intelligence community that protect the american people. teiekssattorel atd inotions, put at risk the lives of sources and makes it much more difficult to recruit sources and damages our relationships with our

partrs. conquently, the leak like this seslmindwi veath a director mueller went on to say, quote, i don't want to use the word devastating but this will have a huge impact on our ability to do our usiness. your ability to recrui sourc alasog term effects which is why it is so important to make certain that the person starts responsible for the leak are brought to justice. news publications the publicize clasfied information claim to prome edernmt spcy t ere e motivation is self preservation and increased circulation. they cling to be in pursuit of uncovering government wrongdoing but this mess any criticism that their actions may be wrong or thhalssutethn. debate on first amendment

protection and the media publications. what are the boundaries of free speech? how do we balance this freedom with the government need to protect certain informaon? i hope the justice departme willringhe flfocof ans ha otd information. we can judge whether it be administration willing to conduct a serious and objective investigation by considering the two factors. one, whether theywillhl mira oia one nut ether there would be investigation completed before the general election. otherwise the american people rightly can conclude that the administration is hiding the amanura acalindangered . rm fly want to say that the administration's track record is not encuraging. it was pointed out by the nking member of the subcommittee many ago that the administration has in fact initiated a number of

burylittle, if anytins. i e this time would be different. thank you mr. sherman. i would yield back. >> the ranking member of the full committee, the distinguished gentleman from michigan, mr. conyers. >>hank you, chairman seenbrned gon oinsses this is a difficult matter national security leaks in law. my good friend rom texashe woer sprioay a role, and if there were prominent membs of the administration involved in the leaks. that is what weare her to try hen'mentioned in the names, so i presume he's not

sure who's doing at. whdnt inquire ourselves.t we alshave regular power of subpoena if somebody thinks he weught to ta towehould lkthef it's somebody that isn't cooperating with us in this investigation which is a legitimate subject for discussion we should subpoena them. he gtl wilyie imat at off chairman of the subcommittee will as well. if you are going to support our efforts to subpoena individuals from the administration, couldn't ask for more.

o itlipol atwi t subpoenaed in the full committee chaired as the same and we could have a good subpoena session. >> the only problemi at i initofu odat w to subpoena and neither do i. >> okay. [laughter] >> that's great. we cld have d this usbe .n d of july. but right now, this hearing is going on without anybody knowing who they would like to talk i theheee bipartisan lists. i'm very sure the former attorney general from california

who is a member of the committee ja moment, sir. >> the gentleman from michigan. >> we could t your time, bt i'rentouat we don't apparently have any names. everybody is willing to produce by w in'tt an names myself. you are the ones running the coittee saying that this is an important subject and i age tho.

ju want to describe the nature of the setting as this starts out with. i would like to point out a wetae s in ways that do not undermine the openness and transparency of the government. i think we can start off as a i k wude int. cuonut the issues of over classification of documents in the federal government. i think that is wrth our atten. the law passed in 1970 -- 1917 needs to be looked at again.

at went on espinagin t rlrtte etury that i don't think as much relevance now and there's a lot of work for the committee on the judiciary and the subcommittee in particular - >> the gentleman's time i expired andwtutobjecti, mis. ditio >>hnk you, chairman sensenbrenner, and i won't use the o minutes, but i will just conclude by saying when we look at the issue ofleaks, let's looatthemacss a perioo met includes all the former as well as the current administration. and i think you for your generosity and i return the balance of the time. thank you very much. >> tha you. wioubjecti, llmm g em wocin objection.

the chair is authorized to defer recesses during the votes on the house floor. it is now my pleasure to introduce to these witnesses kenneth wainstein is a partner prcecson corporate internal investigations. he is also an adjunct professor of georgetown law school. mr. wainstein served as an assistant u.s. attorney in both of the southern district of ew york and in the district of laheve tus rnn then he was the assistant attorney general for national security. he served as the fbi director robert mueller chi of staff and george dalia boesh's de fhe university and california berkeley. mr. nathan sales is an assistant professor of law at george mason university school of law.

before comingto gerge maso seals a theussn cry podeel he eatment of homeland security. he previously served as the council and then senior counsel in the office of legal policy at the u.s. department of jstice. as fellow atgeorow ery n i00 and 2006. in 2003 through 2005 h practiced at the washington, d.c. law firm. the court for the honoable david ofte. cout o heeihidergraduate degree from miami university and duke. colonel kenneth allard is a commentator on foreign policy and security issues. for more than a decade, he wasa atryaay ohe c news, msnbc and cnbc.

in 2006 he joined the faculty of the university of texas san antonio as an executive in residence at senior lecturer at magent s tar nu seers intelligence officers as well as tours of duty as an assistant professor at west point, special assistant to the army chief of staff and theean of students at the national war college. he receved his ndegraduate eerole hnd havad and his ph.d. in international security from the fletcher school of law and diplomacy at fts. professor stephen vladeck as at amanvtyhionscholarhip at lloflwa supreme court fellow at the constitution project. he'she senior editor of the peer review journal of national security policy of the welfare

bloga meer oft exib itofttin raurf soio aca law schools. previously he was an associate professor of law at the university of miami school of law. professor vladeck court for the honorable marshan the u.s. courof appealso theth ui nt man u.ou appeals for the 11th circuit. he received his bachelor of arts from and hearst and his j.d. from yale law school. the witness is false statements will be entered into the record in their entiry. i k at each of you suarzing fe te rls elu tte time limit, there is a tiny light on your table, and you all know what that means. so, now recognize mr. wainstein. >> chairman snsenbrenner, raing mberco, han itan mr oye diui mrs of the subcommittee, it is an honor to appear before you today to

testify alongside my distinguished reer panelists. i spent much of my government career in the national security world where i saw the vital role of the sensive informatio pl in e naonecury opioanpi jeopardy whenever that information is compromised. the problem with national security lking has come to the floor recently because of several particularly damaging leaks over the past few moths. while the recet ones are gomein heee realit t enfoln i existed in every american administration since the founding of the republic has suffered its share of weeks. the national security information can comprise all aspects of the national security progr. th cancroseec ti siternsas eni with the disclosure of the treasury department's secret program for tracking terrorist finances. they can compromise human sources as apparently happened when i was rectly report that a source tht helped oi as npl.

ken haen source of identity or existence is weak it not only negates the effectiveness of that particular source, it also undermines our ability to develop and cultivate sources in the futue. the camels aopom also pp i ec lo oe leow e attack the iranian nuclear weapons program. deacons certainly endanger r government personnel like the cia chief of station who was publicly held it and en killed by terrorists n an the feat he 9 mn tca wn alan prational relationships with pain us and he foreign service's or so vital to the national security operations are now the wor. in short, leaks can be damaging to the efforts to protect or uny. ere is a widrang of diffenaks th ms onna es asi e itinatto the press by a government official. officials his motivation may range from the self-interest to the laudable desire to build the

whistle on wrongdoing and change government operations for te beer sharthe condra'sce oue enha ns gistsc li disclosures. an important part of the deferred is ensuring that the appropriate cases we investigate and we prosecute those who is close our operional secrets. as you know, however, the a enhy record sssfuoesn't have ecns acrd't the ck f trying, however. rather it is the result of the myriad obstacles that stand in the way of building a prosecutable gain. they include solomon. first is v difficul o enti nd hfi pla vee e er o people better off then proceed to the sensitive information that gets disclosed. second, the investigations operate under strict limitations ofthe justice department's internal regulations. limitations that are in place for all the right first amenta na ewhntior ngtbyos hlngers --

challenges and the leaks are identified, the agency was set for ssion was compromised is often left to proceed with the fear trying the case in public comiseinfoinight the keofdentl. for all these reasons the investigations in the cases are exceptionally challenging and the question is whether any of these obstacles can and should be addressed by changes for the governing legislation. agree th tho to see th enpistes wa fcness' efft to reform them. keep in mind however this reform effort will be very complicated because it directly implicates pensions between the national security and the cherished asllnd es iti ra ox issues. for some, consideration of the law that would prohibit and punish any disclosure of classified information will require examination of the

problem of ove classification of the government information. alsony fort tethe pie w lto bahee onwo ivad publishes the lead information come on the e to press should be subject to the same criminal exposure is the government officials that did in the first place. these are certainlycomplex issues givethe damage caused he coueksnd t leathor,ti portt tt thcongss take these issues on and consider it in a appropriate legislative response. no matter where one stands on the political spectrum, we should all recognize the unchecked leaking of the asfied senvenforon autan cossysiptantole in addssing the problem and i applaud the kennedy for the initiative shown in today's hearing. i appreciate you including the in the effort and i stand ready to answer an questions that you may have. thku mrai. thyohanroors. sensenner, ranki member smith, a ranking member conyers,

think you all -- and other members of the committee -- think you all for inviting me to testify. it's a pleasure to appear before you again. i would li to use it as the motoutline the legal tools thgovemenhaailaeomb e heha ameunder the espionage actfor officials to leak classified information to the press. second, officials frequently signed a secrecy agreement than they go to work fothe government. and the supreme courtas held ene.te seccytr a e s el, fect but we have already heard, the espionage act in particular is notoriously vague and the congress might want to consider amending it. leme go into more detail starting with criminal prosecutions. the basic thrust of the espionage act is airly it's ce ocit,. uorl rmn ting hnional defce to any person not entitled to receive it. the fall apies quite plainly applies to give the secrets to the foreign government. the courts have eld that it

also applieswhen ficialof thsethlisrs morrison was a naval intelligence officer and he was convicted of advising the an espionage actor he gave the classified information photographs to a british magazine in 1984. the circuit afmed the coti squary inha laplnut ie the ason it can be prosecuted, said the court, is because the plain language of the statute. the espionage ac doesn't prefer narrowly despised. it speaks in broad an comprehensive rms. nor do i ontain a exption to hrs e uso mphasizes th purposes. , chris's goal in 1917 was to prevent the secrets from falling into the wrong hands. that materializes regardless of whether the enemy get their secret directly from spies or in nar. by reaingb i a tositon e irit rejec notion that morrison had a first amendment right.

otherwise, quote, it would be to prosecute the amendment. morrison is such an iortan precedent because stands relave a. eysi at may sepl t na act. to ts day morrison remains the only person ever convicted of leaking classified information to the press though sevel others have pled guilty to similar charges. in fact over the 100 your life span of the spionage c,th rnnt hlr bht geailkni me six of the prosecution's have come from president obama taking office in 2009. next, i would like to discuss a lesser known but still important tool for combating the leaks bid somemethgomeil t nctiha teo ak information. that isn't just a potential crime it is also a potential breach of contract. this is so because intelligence officials to the ackley signed the agreements as a condition of access to classified information. toe eraament can go to crt

gas rc foth circuit have both upld these secrecy agreements. the two cases each involved a cia official that wanted to publish a book about his time working at the agency. again, the frst endmt is ardtohreort, rn'serin preventing the leaks is so long that it can restrict officials from reveang classified information, even without an expressed contractual requirent to that effect. finally, let me in a cuple seconds talk about how these mightbimrove. 'so rtatte teofsag act are ambiguous. just what does information relating to the national defence mean any way? and who specifically is a person not entitled to receive it? judges and academics havebeen ng thecngreswoul lvesd r rpd er omo an ee. there's another problem in the act. the espionage act makes it a crime to week information relating to the national defence

as opposed tothe classified information or properly classified information. as a result of such as the potentl rodu bfle inerrs it might criminalize some that aren't really harmful, and it might fail to criminalize others that are harmful. here's an ax handle of a false negative problem which is probably more sever aginwhatwolha i boeato tig gy ong talks over the free trade agreement. that information certainly doesn't relate to the national defence, but might nevertheless be properly classified. because it doesn't fall within the four corners of the espionage act, it mighte caetilyaehr ng o tnsnd indeed congress has in the past considered either tweaking the espionage act orperhaps to enact an entirely new statute. mr. chairman think you for your time i would be happy to answ any questions. >> tnk. leme athll

ls t e working, so i will help the witnesses wrapup and thank you, professor. you've wrapped up without any help. colllard. an aeure that it's turned on? >> also the members of the committee. mr. chairman on the way year was at i ip ad did eta portion apopriate but while they're there was a great moment we are proud of because he was the hero of the battle fm toy rtfo s you look bac at the naval intelligence apparatus and he said the state of the nation

dependent on a few dozen men who d their lives a their whle gahe edge of midway and meant the difference between life and death the top of which insurgents today is equally vital. the reason eing one just happened inmlfte i'eeou the government. if you see the government to see the leaks and by the way it is equally bipartisan and occurs at every level and every administration. no one is exempt. esagt, htoh ry aeul but i very much associate myself with the idea of being extremely reluctant because you know what? i think wt you mustdo irst cosuincky thoiina

philadelphia between the responsibility particularly the obligation of those were being defended to make sure that there was were intact. what really concernse today is the fact that we have s oe as yu ad,ngfo ilder i y lifetime. when the articles began to appear, when the book appeared, i never thought i would see the revelation ever being discussed in the pres. when you comei oe dindtl tis definition an act of war pure and simple, and the key thing about intelligence as was talked about is that it removes and the devotee. when aiguity and intelligence ths d.s chd with iran they're much more expert than i am, but on the hill to daysgo you heard

testimony from general keith aland. ralexaep whesis we vulnerable, too. any form f terrorism by virtue of cyber means. st. sdnrwple iat happened here. you get the responsibility of looking at the act and thinking can we do better? thongrs cadoter oect for what nvga. nobody will admit that that in texas but it's true i was in these halls on the two occasions. one s goldwater nichols and the other was the act of 1994 and both ftoe wrelark sln. w canby eagr of rigor to make

sure they were being looked at and were being analyzed correctly. with goldwater chols is the only one ofte awa okt nand opsae tjust this. here's why. with the 800 calls that set here's how the procurement can be improved. here is how and why statute by state that wason. bthy,tetuhts ssi 1994 for the defense today. so, there's every means and i think every incentive to look carefully at the espionage act. cot.conyers,ou'r bslutey asse mthne sln what you do when you get open source intelligence i defend the constitution or about 25 years. the last 15i have been making a

wrg y anoug s ev enanin remotely like this where suddenly you hve the access to information so you have to sit here and make sense of all of this and say the statute we looked at in the 94legiio soatatan te pot o as well. the last thing i would say is to be very careful about t institutions to in this because in the case of "the new york times" i will tell you personal experience they are abusing eir position. time and again what . sier d i gisttek mr. singer did in the operation is running at the white house. so, when you investigat which should i know those things are done wewaf trg peoplei let ankevr ue that there is accountability first and foremost. that is where this should be

done very carefully. but more than that -- >> fi will say one more thin make sure ha hn at yrel t national interest. >> professor vladeck. >> thank you, chairman sensenbrenner coloring ghanem prescott, distinguished members of the subcommittee thank you for the invitation to testify digudtsimotoesuc haheo tfy iosly alongside mr. seals and mr. wainstein the fact that me and colonel allard continue to be called before you and other members of the compass to speak on the topic of national security leaks provides in my view very srong evidence of both the recurring natureo such uauthzisurof asednoio nt fftihagenerations of lawmakers, lawyers and i dare say law professors have confronted in trying to address them. that's why ensure reasonable people will disagree about the politics of the aggressively seeking to prosecute those tat arley sponsiblefr

e stlo o nacu ima. i hope to convince you of the two related poin that will transcend politics at the moment. first, national security leaks or in many ways only a symptom ofhe much rger disease that has already been alluded to is morning vercici ola ngss quon hn r not always the information to ameliorate. second, even if the subcommittee believes that national security leaks by themselvesre a problem with a solution, and that this administration rely agsiti ut faed prosecute the leakers as we have been discussing is terribly ill suited to the task. instead, if the congress wants to pursue reform in this field, it mustfundamentally revisit asarh emicy idfare arotailored and carefulld sanction specifically targeted at government employees who intentionally disclose properly

classified information to the public without any intent to unanlerfrms eonal seriy. a neak t onsety leaks looker regardless with a democrat or republican is in the white house. what's more, given how many governmental abuses over the past decade have been publicly exposed, only through these kind cut m ne o longs theascan in i ty desirable result. i won't belabor the members of a long discourse on the pervasiveness of over classification. mr. chairman i written testimony has more on thisand certainly we can bring this appd q&a if it's eev. ntadcoplri inn hlree h recte spon t. mr. wainstein and mr. sales took the age of the espionage act, the in the devotee o the act, i think it's also important to elaborate on the point th mrwainstein made the eson inl h l eon t

disclosed national information instead it applies in its term to anyone who will lead disseminates, distribute or even retains the and i think that is an important point, retainsthe national defense information to which they are no entitled thatl ean rn oerthrise to possess it. in other words the text draws no distinction between the leaker, or the 100 person to redistribute, reransmit or even rein the ti dse ths od afwy itin raises such profound first amendment questions, not because as the professor sales suggested of the first amendment rights of the leaker but because those that retransmit the weeknd those of us tt re about on e pageo"new times" the way that was written is inadvertently interfere with federal whistle-blower law.

for example the feral whistle-ower protection act protect the disclosure of a oln fany ror disusnpeca prohibited by law and order to be kept secret in the interest of national fense or the conduct of the foreign affairs. similar language appears the whe-loste.ederal llheio a esdeit ean the room that never hould have been classified in the first person putting information about on lawful different programs and activities. quosejeed cancsider the anop lssification defense acclaimed by the defendant that couldn't have violated the espinel shocked beuse the information is disclosed shouldn't have been classified. onan raol r he cds rty rong he espionage act of the worst of

both worlds. as he explains, "on the one hand, the law stands idle and are not enforced at least in part because the meeting is so obscure. thathey ofsecyo h is likely lema xrsi n debates by the persons who must be as on shore of the reliability, and i am unsure of their obligations. whatever one's views of national security leaks mr. chairman they drive home why regardless who's in t hthue th oncr lea wil be politically fraught position. we have questions of the five minute rule and will recognize the gentleman from airn t y mr. chairman. does anybody believe that whole lot we are talking about particularly the espionage act

wasn'tprpey coitly f ald revelation of participation if true in the stuxnet virus or the flame virus >> w ttha fr ar. dpeds wtfoio s actually disclosed. >> you're going to the question are you suggesting that it is a question of over classification? >> no, sir peter by suggesting there could be situations information is disclosed because an officl has te thy orth auitd n'owt we know whether or not it is true in this case. >> would it bother you to know the detail that was described in prte te rs fk imeif t i congress such as the chairman of the cybersecurity subcommittee

on homeland security? that is as it happens to be me. [laughter] >> iouldn't have uesd >>whn bo o administration that is supposed to be working with the proper role of the legislative branch to do oversights asicn uc a that members are not aware of the particular set unless they read "the new york times"? what's in "the new york times" is true. >> it would bother me. it would hardly be the first foou tsekndfs of cgr og h re h opposed the administration. it would bother me no matter who is in congress. >> because it also builds the constitutional question of powe of the legislative branch in the proper oversight to ensure that we are not haing malacto inthecve

chth ras serious concern. colonel, you said this is unprecedented in your experience. >> absolutely it is. >> i know why i think it is unprecedented, but c you tell me youeliei sprenin atht oenetheie of midway i do recall there was an expression to the west during world war ii that went loose lips sink ships. they could certainly syc cybersecurity. >> absolutely ca. pod o the hill to days ago. we are vulnerable to any form of cyber. so guesswhat iaceru s ssme a w d ra apparently, we are more vulnerable. why would we then doit?

that is what bothers me the mo at really bothered me wathe ssc u can't write a book unless you have been there and can actually talk about these things. he was actually there and told him what actually occurred. when that is going o,hat's mseaieth new york times" is lobbying or they had access to information of a particular detail that only have come from someone who participated in thesituaon om inedpeutinn , lomotio toigure out where your investigation would teach you. would it be unreasonable for us to try to subpoena individuals holdare eivod t icussions that e

revealed in these articles? >> as i read, no one in mr. singer's's book and also barack obams war and the wo ft i rinhe classified e e stiowd say who benefits. whose position is by these leaks? that's where you begin the inveigation. >> i know who was not bened by it n ta teyas o rnv n at hi lis. know that there are professionals that were working with us in the area of cybersecurity are not benefited by the spirit and of the national security interest of the united statesa not sooutoloat i benefited by this. >> the gentleman's time is expired. the gentleman from virginia, mr. scott.

>> thank you, mr. chairman. mis you can't dealthingsfe y hnsaent u tgheiio of the offense will fully communicated during a meeting. any information related to the national defence and any person not entitled to receive it if asvae any otheran t there's a lot of words in there that are subject to interpretation. one is national defence. you talk about that a little bit. is that limited o military? >> it certainlynudes ta atrs yo enetrade deals. are they not covered by the national defence? >> i don't think it clearly is covered in the way the intelligence information would be covered or military information would be covered. >> some f the egon w deidedluae >>hi trade deal arguably

could be in some circumstances but it isn't as clear legal but as military information or intelligence information would be. >> or we talkingaut te o sintin g inatthast been classified be covered? >> under the current statute, it's possible that unclasified information that relates to the national defence could trigger the liabities. >> all classified information nsil e t orf noop cssified and there might be some forms that do not relate to national defense. >> improperly classified defense to a criminal action? >> as my friend and colleague profrvaeckointbo no aroion onesneth espionage acts. >> mr. vladeck, we have leaks in the press one of the first cses was the pentagon peri h

port u is e powh e? >> congressman, we talked about this before. i think the text of the statute could be used to go after a reporter not necessarily for the active publishing disinformation i inthvnm hed of holding on ysn ruc rs hs cecse of the very serious concerns they've raised in the pentagon papers mentioned they suggested in his conference that although the courts could not stop "the new york times" r publishi t pengon persthe adstonldoal ose a fact. >> so the state of the law now is what? >> the best i can say is it is unclear. i think that there's only been one case in the history of the espionage act, what the govement has prosecuted ird rty atacpt thfoio oedt leaker that fell apart in 2005.

i think there would be serious first amendment concerns in such a cse, but those concerns have not yet produceda opini that you cannot bring ch a sot'sw ieoraoue centoue e the statute. >> a blogger and journalist? >> of theupreme court for that rson s erkeley stivsplcne h slsd t waorat distinction between "the new york times" and the blogger, so i think that is only part of that this year. >> and then the wikileaks, is he blogger or jornalist? >>f theoverent re erdrc janse in w to rise the first amendment on lines the press retransmited in the depression. >> let me just ask genrally what is the difference between

adhser >> i guess the problem is the examples of individuals that have been prosecuted who saw themselves as was ways i think thomas is a good example of that. quonrsivhinkt is unta whistleblowing calls attention to waste or misconduct on the part of the government i think sometimes that will include leaking information that isn't in the public domain. >> do yowant to comment on that? >> tre ets. tenithct tts eevant and to the national defence. the second thing where is the motivation. any gal test also involves moatie intended to do something else. a tough line to draw. >> thank you, mr. chairman.

>> the time of te gentleman is expired. the gentleman from south carolina. >> thank you mr.chan . nsn, sth s bero for time. it strikes me one way to have fewe leaks to prosecute and put leg i tlkyoe people who do the rsc i couldn't find a federal statutory reporter privilege. am i missing it? >> you couldn't find reporter? >> it doesn'si inhe stute tyoulve noaro any privilege is the our unqualified and to a reporter's privilege would be limited and would be qualified. so then wemove to this area where because it is the first amendment heaven knows we can have any limitationsoth i hghban

thitehfor friends who are professors could come up with some examples of where there are limitations of people's first amendment rights. i will go first. obscity vs isoprefr? court -- >> you don't have to cite the cases. >> bishops selling dates how about the deceptive adveising and how how about students on high school campuses th gome employees. it's balderdash, legally and otherwise. so that then lavesme with hi wearki teu.atey i think in the district of columbia to investigate the leaks and if he follows the doj

policy he has to ask the attorney generalfteen rpron obpne reporter in a case that may wind up embarrassing for this administration. so, why do we not have a special prosecutor in this case? >> we are referring to td idestarqi orgel edn a request to the subpoena reporter. >> that's exactly right. the doj policy. >> it's in place to protect the free pss and make sure juheolrathelis'- agi pe act there's nothing in the espionage act there's no privilege. keep in mind, however, you can make the investigations and prosecutions without actually subpoe name of the eor >> caswnurca th a ei eghe ca without

calling the dna expert. why not send a subpoena to the reporter? put them in front of a grand jury. you either answer the question or you are going to be held in contempt and go to jail, which is htueprs al uapire to become a teacher men. i thought that was the crown jewel n the reporters resume to the actually go to jail protecting the source. give them what hey want. thowwed drt evt a ay n jail but you make a good point which is the easiest way to make the case is go to the reporter. you can get to the reporter's f weheseremi eds atulu thn that? if you were the prosecutor and your job was to get to the bottom of it as quickly as you could, you will send a subpoena to the reporter, right?

and put them in front of a grand ry. >> kp inind m gg ndheenf guonntoycng apatof it and -- >> i'm not saying that every line and a district in the country should be able to subpoena reporter. i'm just saying that something as imptantnd a comllin if yuwnt o s abthar scrutiny, something as compelling as national security, and they have to as the attorney general for permission to subpoena of reporter and what may be a very embarrassingfctatern for monthbefo a ee eltion we have to have confidence in the outcome and you have to have confidence in the process. so, why not do what ots of members in the house and senate has asked and have a special why t do t?

>> i've never heard law professors this silent before. .. itsses wo fromerer exenhamat a very important and interesting hearing. i wanted to begin wih jut t

i'd like any of you that would like to tell us about anhing new to your perspective ofhe subjectthatnaon sety'te your attention as a result of the discussions at you've heard of your fellow panel lists, and the members of the committee. ulketoato record, colonel? >> when i talk about the fact careful in the -- i say that not m tcorenafederal agent msel inigions federal investigations in the article.

i'm sorry -- three years, $9.3 milln se po ess what, and i'm talking about a special agent the subject. >> yes. >> guess what. you never forget that. u and agents they're coming after you. so i will simply say when you t you.nact legislation,e >> mr. wainstein, what would you offer to the discussion, sir? >> i guess you'r asking f thsaninneod

isthe beginning. it's the third hearing on the issue in the last year and a half. in the senate and2010 the espionage act here before you all and the aftermath of the wikiakscrea ay ice in my mind there's a are real imper take to look at the legislation and bring it into the modern age. golupyouonessm,wh. thng d s 2000, both houses passed legislation that would have created a new substitute along the lines we discussed earlier to do with away with the espionage act. it'saepratei and lid e. w w teven employees congress solved that problem a soday ago. unfortunately the legislation was vetoed.

wee still waiting for more precise instructions on exactly what the scope of liability is for officialshoe ssshold we just rewrite the whole subject of security leaks, or should we just improve on the 1917 ion? >>tk ld n fur. t only should there be a amendment of the espionage act, i think congress should see as part of the effort for the claftion scheme. congress has historically not exercised the powerinta e all up to the executive branch. the atomic energy act of 1954 actually provides details, classification rules or certain forms of information regardg nuclr gygram d excuti order.

you know, if it is serious about a workable system going farred, i think the system can't include the back en sanction ithasto inudeth n siatsri >>ly ask any of you would like to submit this for the record because i will permit it toda but i'd like an evaluation of inform you about the following subjects waat, pentagon, van hells burg and the whole consent of restraint. i appreciate anything that you can get. it will be put in record. w litopsht o yar however. t a boated request. do your best. gentlewoman from florida

mentioned ths. >> thank you, mr. chairman. . cleann nenlpeop and harm our national security? >> certainly can. i think in thewikileaks case we saw there was danger presented to people in articularly those folks in war zones whoeld us ou antodby u wher pli who's know what happened to some of them. i'm in fear for the lives. >> colonel how would you dress to the llies, i'm sewer the concerns withhe problems wi che tellence ss confidence. how would you repair the damage and address it. >> i'm not sure. i was young person in germany for the hearings back in the . d pl kt day nogongth fo you.

i don't want to see it on "the new york times" "the washington post. let me tell you something, when you have that sours idin udat u lw. it takes years to overcome this. ivo l y at inur saenctive war kgb, unprecedented consistent act access to documents information that

should becsi --yo b ssied.e ul >> there's no question about the fact. it's on the front page of the "new york times." it classification. if that's not classified. nothing i s thaectaic erng one. then you would what you read is true should have been classified. there should be a teyare ro d coletention emi ehthe - congress investigated. what bothers about the it's become a agency for american ppg the i guess the benefit of the reporters or whom

every they're benefiting that's a credit respect to the american people and as you said, we are vu initial too, and thisu r ice a s d my colleague. let's see, attorney prosecutor trey. >> i was hoping to keep that a secret. ank he enerlaf idf uti as a lawyer. >> i want to assume a highly decorated former prosecutor and thgreat state of california were appointed special counsel. you would suna the eporr, t un m,gheyo fore gra jury? >> no. i have to back depends on the circumstance. in terms of, you know, who would be in the zone of interest. f dendz onheh s

inmsth wing that don't quote me on they might not be encumbered by the same regulation. they might be able to go ahead and subpoena the reporter. nse hestameey'regoto ers il spd ci counsel does try to exhaust over avenues of investigation. that leads to my final question, why would the reporter be entled any more rti an tse ithe siuaroom oreowhwodoh wh se ff my have overheard it. why are we afford. it's not schiewj and why where you giving more protection to the reporter than anyone in the situation room if they were republican. admistraon or ime. it's the concern of not selling the free press. it's the recognition that

reporters serve very important function in the socty. if we start subpoenaing them in with regularity they'reong t be ls ergec ut rporter, you know, they serve an imortant function of disclosing wrong doings. it's a balancing act. that's the reason why those regulations are there. that's the reason r pos arularbasis. that being said, i firmly pport when t time is right and the circumstance justify it, to bring the reporter and especially in the case whe there's serges damage to the national security. enlesimas s.. >> thank you mr. chairm. i'like to ask a question to professor sailings and see what he might think about it afterwards. and it's a followup on the issue the press. itthnew t forme

classified information is discouraging the press by filing criminal charges from courts. however, both of these approaches raise cnstitutional concn as tectr w wanhen keep certain information crft, with the importance of upholding freedom of the press. >> thank you, if i had ananswer to the question, i would be a dean instead of a professor. that the million dol quon tharexlives on the one hand, the first amendment is a guarantee not only of individual rights to speak and receive information, but also a profound civic value in favor of open ovrnme crac u tht ou trar apes on o n, highly classified and classified security issue needs to be kept.

if it leaks we cn't wiretap a phone. sources get caughtn kled. o satuyttdife values totally different direction. it's impossible say in the ab abstract. i think that question can be resolved in the context of the specific case. "the new york times" case, the peonaperas whin oio s urut the information classified wasn't all that embarrassing. it was emarrassing but it wasn't operation detail. it was a history of how the u.s. volvement in southets. bceegth el iesin fe speech, it eas to see why minimal sensitivity what the balance of tilt and favor of the press. but on the other hand, information about, you know, the name ofhpakstandocr wh amn nown jail

for three decades. that has a much more profound harm to the national security. the first amdment equity might be different. >> i would ad, i aalhi it s he ren'll. i mr. wane seen suggested that the attorney general guideline is there. i think it's there to protect the government. i think the more the government goes after the press, the more of the government is seen as not kes, he more the cot will be inclined to step in and protect them. it bilged the credibility along the cases where he describes where it might have a strong caseby not ru he th fhepo y letime itoksli a national security. the reality is that is impossible strike with the abstract. the closest the supreme court has come is the accommodation on

iostts e teiges as after thefct prosecutions are separate issues that worry about when we get there. and i think it says a lot about the national security over time. there has never been a prosutof meber t s itesna t. we'v ner ad on is a strong testament to striking up balance is anything i can say. >> professor, i also wanted to ask about the question of weather we should ditingsh betwn modeleti ak culd occur. some are motivated by government and seeking to raise awareness about an issue or policy. other leaks indeed will be highmva and how much consideration

should be given to understanding the motivation behind the leak. >> it's a great qe depds owhawa hem hedsclosu o the sensitive information then motivations are relevant. i think that's part of the act it's currently crafted. it's the premise. once the information is out there, you knw, wa iou nnasit oethyt thho more carefully statute could very well take the if the goal was to reveal fraud or if the goal was to call theattention ventgrricans ton il rrhefcus th statute. the problem with the law is there's no room for that. we could have it on the editorl pages but not in the the court.

tor.an. tmeexd. weree wtness be here. we certainly do. the department of justice policy get approvalor where ting back t t id te policy d it goes back top who is protecting the people? the people are he ones that are w t tng. ie, okay we have a doj policy that protects also protects rotter, who is protecting the navy seals. who isprotecting the one th gave ustheinoronthg i , otng eho are helping us? and i'm not getting the

impression we have anybody doing that rig now. i know, that this very able we had the torney general ofthe unsttti bre full committee in his words, there are political dimensions to justice. th goes against everything, ever wrso goes against everything every democratic party teacher i had taught me. they knew this country. .hey knew hesed boeeo wahi our pe and the man who is doing three decades in prison unless we confirm about stepping up and helping him. now, i would like to know, f we o goostundpecl rosut

protect those who are out there protecting us? and as you're thinking about that, let me tell you a father of one of the members told me that tehe- s the vice president on tv saying something like how about that. aren't they great. lets hear from them. the father told me that his ug-in-w gopr anmirpct because they knew that the vice president had just outed these guys. and then the president picks that up d starts talking about seal tm si whenou hehealar a hlptor nearly two dozen of seal team six members. who was out there when te vice

president and president outed seal team six? we kow th prident n theaodese that you could propose that would actually be looking not out for the government, we not out for the reporter but for the people for those who are trying to pect us other than a specler prosecor d like t har s tshihoagt it explains why doj created the regulation in the first place. doj recognized sometime there can be a aexperience or conflic of ntert nd ridan ot ielocnd arspblr investigating. that's why had disregulation. you talk about the one -- justice that's w we had toet isn. te.lr nt us

there is a mechanism now for the special counsel outside the normal president issue chain of command. give them a asured independents so they don't have to get aprielin the superiors inhejicert. it's good example how the regulation can work in practice after it was allegedly the senior administration official. . yu're goinge aarner h appointed or asked for an investigation by an inspector general of doj who got a tape of conversation with a federal agent and rather than acting ke arncten shrnr to the federal agent you better listen to this before i ask you questions. we've got a real problem in the department of justice.

if that's the kind special investigations we get. aid .y time is up. thai l s at after he recognizes to the gentleman from georgia, mr. jackson, he will recognize himself for the last series of questions. gentleman from georgia, mr. son. m wer wn u m chi. -- where was the moral dignity and outrage and the like that has been before us this morning. when was that wnaiar cia agent was outed by the previous administration? where was the outrage whenth gelema-- iwatno prut heulhave been and i still

hope he will be for outing her. >> you're claiming myime. i'm glad to knothere was at least one of my colleaguings on the other side of the aisle tat ednna, i k yoa have been by yourself on that. and itsee like there was a attempt the covering that was hoistedupont ars ta drama. my colleagues on the other sigh, but now we want to be more indignant than i think is required. times weave good news anda le ew ao leak. and there are some leaks that are bad, would you gentleman who generally agree?

i see some headsshking upand wn tcecye. >> no. >> is that correct. >> sir, there's such a thing as a good leak. >> y know information because they can cost lives. >> god leak and bad leaks. i don't think you can descroag with that. we really needed leaabt thnds l r whasion over there. and, you know, problem is that sometimes our laws can go too far so a the speech. and i think that's a conflict

that we probably need to address re. the mo tt p assistant attorney john youth and assistant attorney general advised the u.s. government that acts widely regarding tourture might be leglypmhe per admissible. one of these memos was leaked to the puic through litigation. and then were widely criticized dleyamal indefensible. president obama repudiated the opinions in early 2009. the source of the leak for the memos were never found and w

hatacrr thho every administraon that has served in ameca. any particular reason why we should be so dramatically concerned about ecen sa iia congressman, put your finger on a interesting point. whether there are good or bad leaks. and some people say we have to allow some leaks. that's the only way information about th wrong ding with the w,gr he wiz coming has passed a series of whistle blower models say if you're a whistle blower in other words you see something that looks like waste fraud, abuse, im cct cake thnftiupa inig cniou tat up so the intelligence committein congress. there's an avenue for surface

that other than going to have press. the argument that you need to have leaks in order to allow that isreally ot hea. >> over the espionage statutes? well, they do in effect. the s sm tnn nosth you follow whistle blower protection procedure and dilose thing to right of people. -- that's the idea. the's a concern those things have to be suffient t gntn'im hs re the chair recognizes hipless for five minutes for the final questions. first of all, let me point out that in the case of ar ppanere s a special

counsel appointed patrick fits gerald who was the u.s. attorney for the northern district of linois and therewas controversial prosecutions lvwhreulte in m coti ick lowa the other thing is, that i, you know, i agree with counselor allard. there's no such thing as a good leak. a good leak is one that, you know, you agree with who gets alndhk tetal dyrealm by a leak. and e thingat if econacd provide fornct, e istlo protection of a whistle blower who sends the information up the chain of command to people who have been cleared including members of the senate house permit slect mte

w,inidlof ta thi difficult area to legislate in. and i don't think we have the time left in this congress to be able to deal with a variation issues. at enaacmuch 1917or is outdated. the time of espionage that this country faces now is not he type of espionage that the german spies did in the marc to rld r yoowwopotu tharwpkaf laws that wood row wilson got passed which resulted in one of my predecessor as the representative of the fifth gerec by af wisconsin,tt constituency that mr. wilson decided mr. wilson show choose

the ong side to fight for in the first world war. mb jient ome time as atti itmsmhateto of those kind of acts mean we have to update that. i am not for having an official secrets act like occurs in the amorengtarf siti e t some time of almost strict liability on someone who deliberately leaks something that he or sheknows esasitcssifd tomdyo siti an finally, and this is te question i would like to, and we'lstart with you mr. wane seen. are there ccumance r publishing a leak per mbl

under the first amendment. >> i believe so. i believe actuallyyou can look at theiconic caseere te bld fathwer inapeco in 1922 which would have been devastating to the war effort. it could have cost tonsof lives. you could see that somebody did meg w bwhy and knowled d of prosecution and punishment. >> how about prosecution and punishment for those who disclose seal team six went in and took out bin laden. is tha the sme thig? >>epen on eac coue i couldn't serve upon it. in retrospect i could see what it did to world world war ii. it's hard to know whether he

seal team six operate would have ffered the same damage. and the intent behind thelk. megthho la seriously looked at by a prosecutor. >> here we're talking about seventy years after the fact on the japanese codes on midway. perhaps seventy years from now, lkin cittalk incomeadt- s a i think emphasizes the fact we need to update. if i could, mr. chairman. distinction between punishing and rosecuting the newsper that's a difrent issue from osin nng e laning leaker. whether you should put the reporter in jail. that's a bigger step. >> okay. professor sales and y time is up already. but answer the quest >> lly. ties depends.

there are circumstance in which it certainly would be constitutionally per admissle to hold reporters of the same criminal law standardthat evey standard whin e united stes iexpeed to. t, emur ndonp case recognize there may be circumstance in which would be consistent with the first amendment to apply the terms of the espionage act to reporters whopublishclif rmn. haouy esso appear. i think what is a very interesting and hearing that has a lot of interrelated and diicult policy questions inlved. rethmme ou c at trying put something together that updates thlaw and acements to balance competing interest and how they

interrelate with each other. coingthefacatleaa ery cind testify against something that is in the law. but i think it was only unacceptable to keep relying on a 1917 act todel ith the is espionage because espionage now is a lot different than it was in the first world war. that having been said, thank you all for coming. thout objection,the hearing nale cnversations] for

annual meeting of the national governor association. saturdayorning at 10:00 30 eastern, discussion on medicaid with iowaonoter 2:30 saturday afternoon maryland governor and -- vernneepur aeor andelre naal governor's association annual meeting live this weekend on c-span. yitosenth west.ehttm that's when he collapse when he he realized it was going to come to an end. >> the story of a anthony the omdsisto power.ond w wr

he was determed to die. anhe w derm tdi im 8:00 on c-span q and a. the house and senate are in recess. they're back next week. the house reconvenessed t 2 p.m. eastern o tuesday. ey'lcoer blo tihi programs will be identity by the automatic spending cuts in january. also on the agenda, the 2013 spending bill whenhe house returns live full coverage on the companion neworng p.te k d they'll vote on the federal judicial nomination for new jersey and senators will debate

the disclosed act. it requires political organizations to identify anything ove100. it coersti spe pacs the senate is live here on c-span2. heritage foundation on wednesday reviewed the major decision of the supreme court term that lend lmonth. newhgi favor of the health care law before the high court, and michael one of the lawyers arguing befo the justices against the law. [applause] th uacl and thank you ladies and gentlemen. i welcome you here and to this annual event. looking at the most recent supreme court term. we've had as you know, over the last seval weeks, anumbe

nc cis b d ah scholars and in the page and the next panel to analyze them and put them into perspective and give their opinions and analys of what the supreme cort ha done. reexcellent attorneys, people who have themselves participated in either actl appearance of advocacy before the supreme court or extensive writing about it. thrsskerw ud eaf e a se honorable donald b. the solicitor general of the united states. we appreciate him solicitor general you wille here. and to talk about the cases. pament of justice, before that he was in private practice. and in that capacity, well known

law firm here in d.c. was in charge oftheir apllate practice. rkeoserve theoon community and seven-day forecast several awards -- several awards for the effort. in addition to all of this, he has been a commentator on d his degree fromn colombia law school. he served as editor in chief of the law revere and alerk at the courts of appeals, for the d.c. ciuit, a al, fohe rawimeoth jue heteses supreme court. our second speaker will be mike. mike also expensive appellate experience. he served in the department of justice and handled number of cas there. aiheng up supreme court

there. he was one of the lawyers in famous case of the bush v. gore and argued ithat case. he has been involved in the number of oher major cases and t nre pa hve mt ouhperis professor richard epstein, he is a stinguished professor both at the university of chicago law school, and also as new k unsi hesatais career really in california at university of southern california. where he starte teaching. and is also a fellow colleague of mine at the hoover institution at stan order university. he is an exenve wrter n ny books and even more articles and specializes in a teaching of variety legal subjectings including

constitutional law and legal history and la plicy re rypd vel ofseprsis and please join me in welcoming the first speaker the solicitor expwrrn of general of the united states. [applae] thk yo i'inke sp a [laughter] and having done that. thank you, for that gracious introduction. i'm sure you all understand beuse of my position i'm not gointo be offering any peonal viws today ou e co diore m. i'oisclset what the government said in the briefs, and in the argument, and the urt rulings. i'll kick us off by touching initially on three cas. izmmatcaeanh edses alverez case.

on health care, at this point, it's not clear how mch i can add to what everybody already knows given the saturation coverage over the last couple of weeks. ery shthot's afe o ha up tard e minimum coverage provision. which and the insurance reforms which is a part which will make affordable insurance coverage avlable to millions of people surae nd ga the al ac taltrem. evne knws the court held congress has the authority under the clause tone act affordable care act medicaid expansion the states could not be required to ndas di oheirexitingediid dein ty were to decline to participate in the medicaid expansion oop i'm not sure mike and epstein will have more to say.

detl lar.e'll get into i o thbomli our held act is a. i'd like to spend more time on the arizona case, which was also played significa decisi over the last week of the term. d asqck u anths he c dision. the court held in that case, the three provisions of sb 1070 immigration law were preempted by federal law and declined the forty provion which required state officer to cck t imat fus wf detained. seeing how to works in operation. the provision was section three of the law made it a ste crime violth ersiofe im for unlawfully to seek or

obtain employment in rizona. which authorized of officers to le bvetwstswhich tha thcooif u decision, the constitution authority over immigration in the national government and that each state is not free to impose the own regime for decides who they lawfmly. in the state i think it's best seen ithe e rtrung ec t oa ththur held that congressman occupied field and removal of aliens they could not enforce the own sanction even if the standards the state was ans.tical to h fedal in'snintt ice ea joined that bottom line conclusions on such a law. section five of the law also significant there the court held that because congress had gnan f standards to

govern the sanctions for employment of unlawfully present aliens that state could dd ng dons er t what spicsngcsethat the federal act previously done. and you had e section six of the law also. you know, i do think those rulings articularly section eydialw io ofe snan the law to do go effect. it's the provision to check on the immigration status of a person who are lawfully detained for other reans. unlike the pvisions the court ovn cbled they outh consistent with the federal government's immigration authority. it did include caveats

indicating how it was interpreted by the ate court d could have a bearing on whetit s awf rc inst's authority. this is a case in which the united states did not prevail. i think it's fair to say it was considerably less pactical signifance on the ecions t inte e first amendment significance, the court struck down the stolen valor act which made it a crime to falsely crime to have won a military honor. alverez, the defendant in that iminal prosecutio ade rwierhhe ml one thing significant about it there was no opinion for the court. there was opinion by justice kennedy for four members of the the court which build on the cose of the few terms arlier inthsfsas thwa category call

exception exemption for false statement of fact and the false statement of fact that fell into historically unprotected categories such as deaf fa mke otonraud orbendh insed suggested this kind of case ws that ll or apchined d they found that the law of government had significant interest. it was not other means by wch the government could have achieved the interest and therefore the law was untion heteonorhiel and justice false statement of fact felt to be beyond the protection first amendment in

numerous context. ere was no real risk of liotual e was a -- we didn't prevail on that. those are the three cases that i put on the table. i'm sure we'll have a discussion about them later. thank you very muh. la now we'll hear from mike. [applause] unliketheit geal llpumpnaonio there. it's like the old saying, the eration w the patient died. which ask sort of - [lte

and the chief justice rewrote the statute and gave copies of the power and the ta power all thpoer othle. what was cleary a judicial rewriterof the statute and the interpretation of the statute which he he noted. the nalty of what is a tax has beenratyaior in l can't offend that whoever monetary consequence tax to that. adopt do something don't do it . and put a penalty on. that's the that's a penalty. if they say, ged we're not making it illegal. what you do will sur

ecic secee i viously a penalty. the crime is chief justice looked at provision and said you shall buy insurance. and you will pay penalty for failure toet the legal can. re t ay pata if you don't what the government suggest. he clearly rewrote the statute. you look at the structure of the statute which had different compensatory damageses fur the penalty on the one hand and the mande heoher i ed pod y reth same. the high level of generallialty. the the court didn't want any money. to buysue h as. ayeal d eeddo innc and chief justice made much of

niibce ti.rough the irs ad etor t ot ole new at again, some are taking slice in the fact all they did was rewrite the statute. he didn't rewrite the constitu. but i really don't thinkthat rv iees bee yt id that commerce clause was designed to prevent the federal government from doing ie imposing a mandate he turned around and said they can do that under the taing. they don't have to call it a

tax. it no eon b itaegoon tomorrow they can pass a law saying that will pay penalty if you don't buy the broccoli. they willrewrite it to say if ay. buy broccoli yu'b ou n'ou certainly not in terms profit vision of the act. e ndipl ofallythnksome ee penalty can become taxes. some people are suggesting the penalties can't be too big. that doesn't make a whole lot of sense. the bigger ty are, the more the governnt wnts eve rtainot au in. they got serious ways of imposing the penalty by taxing civil penalty.

to literally inactive. rris aayi mi it struck down in pay a civil penalty. so in my final point on this, people think agenda respect for the the court. i think of a different attitude about how it is supposedto behave. i don'tthnkirett away that enacts congress would never enacted and b. could never have enacted they couldn't have passed the law that to the american people it was a tax. i thkthat coer aut indend oe ic ou eorat haomt about the timing of and it names look like president obama's has been unprecedented attack on the court while they were deciding these. hoinueddion

wh l ghi kind of lobbying in the future. i think it was very fortunate president and i'm sad to see that some reports about the chief justice's ctivity have confirmed it it wld hav agn. e of which don already mentioned. alverez indication. the discussion very quickly it was very significant in the court statements are prcted by the first amendment you st e, 0 thar thai the prior about false statement were made in the context that reduced material harm. but they weren't going extent th to theoitil e ift.k mbf cases that require a great cause of action if you tell an untruth during e political campaign.

you can imagine-- the work it would create for the federal court. dn,lyutf . the significant decision with the indication. which involved a controversial issue when unions take mandatory fees from you. can they spend it for political reted nde. ve the nonunion employee to opt out of the fees that were going for the political, that was reported with the constitution. i think there was a strong indition in s opinionfrom loeee oonstitutionas not payment to go for political advocacy to make it up and to endorse it and i think that could have a very signicant effect on public union employees d d aveonls,

ift ctn was extended to private sector unions under the case. but i'll leave it at that. thank you. [applause] welcoming professor richard epstein. [applause] >> thank you. again, -- i sould say i wroe in the madate pinbo ree itd g er th medicaid extension. the one point i would like to make now i drafted it. [inaudible] everybody laughed. b ncry gllook the argumens vote anywhere in the united states. the argument was sopa the threatic that the state of texas and florida refused to raise it

before supreme court and ill hold it in. actually have a good chance to win. actually more important than all the others. the interesting feature of that i actually regard thias a ti easy csa tht waaic case as a matter of constitution that law. one of the worst case ever written was the united states supreme court without the code of rit. rtcoiohaeh attached to government grants are legal but i will grant the conditions satisfy the industry of mankd. he did it in the particular case by introducing a distinction itcon thothehe onenand distinction.

in his view, i think in give me all your money. that's coerce. if i stick my gun to your head ua--lted -- have you wallet. the correct line said i'd like to get yu in the wallet and pay you. that's my own situation. chjue ge rp dend to between cohearse. in this particular case, the chief jusce wanted to attack the fundamental distinction. what he did do was make a argument which was cotent abouwhateiun e wettaa tax it's different from making a direct order. it's dead wrong on that. penalty can't amount to a

partular. e g,hsid, look, you know, there are serious conditions where you can and can't attach it. and if we require you to sacrice some of the action that is not voluntary even thou we may choose to do he taking different view on the relationship. the sacrifice which was sn count closet earns under the case. the circumstance with the sacrificing is a vernnt grt termsonas ald at allows antitrust law than a constitutional law. justice trying to

>> the field conflict everything is working in favor of the government. i thought he was going to win all four parts. but scalia is te atest

gomentever had or exerted any power over the government in fact if you look at the naturalization calls the naturalization doesn't mean immigration in ordinary english only means the same thing by the time you get to the 1870's r tisae ghat e aclyua rey ueth rtar case and that unless you could show a reason why the state sovereignty should be displaced then in effect he was willing to let it run. it was an eye-popping decision. i think actually in the end, he has to b wrong andhe preetionnasis dwr. d, feydo set the law i'm not even sure that the court was right in saying that it's okay to say that the state can refer people in a cooperative arrangement that would be fine i think if it turned out thatt edral government was wilngt thnneddowaoom bring this thing that we regard this as an increase in the federal enforcement level but we do not accept it seems you could

make a reasonabl credible case if it were to go in in the opposite direction. now anher case worth io it. tuen ista yplulshrn the kind of action that the government has against the epa? i'm not hre talking about bill mulken what it is a final judgment on the epa but you have a guy that is about four parts away from the waterstg ecnd hcsoca ond ri to build the foundation like those of his neighbor and now all of a sudden the understand that he is discharging pollutants into the waters of the united states. this is intellectual doubletalk of the worst natre. thfundamtast neey leatkntom sth instead of waiting for emineth harm to shut people down on the damages you have all of these participatory remedies that in one case in an alley and will likely generatthe kind orm thkn frc she's using on

this particular plot will change so a single drop of something will end up in a river 800 feet away or whatever this is a classic casein which the federal government in and of the gigrntetnsoue a ini tunvil waters of the united states and what should have been done in this case is revisit something like say you cannot use these kind of clubso beat people up and speaking about clubs, the last case i would akbout busswave the waste of public funds that try to religious ganization which has its own definition of who is or is not a member of its organizaon and the great dimitiawch i waeepo to one principle is that forces the courts of government in the position of telling the religion that you are or are not the

pracce the effort to try to frxerce ofln syction ofhe nog i think one of the great constitutional miscarriages of the time which is going to play out of course into medicaid context in connection with as we well know the question as to whether or partipatinfras.itutions can s oplyad, inexcusably wrong. thank you. [applause] >> we have now heard an analys ofeverteo a utge or ll ieec speaker a minute or two to respond to anything the have heard from the others, and we will start with the solicitorgeneral. >> thanks. so, picking where th professor let f oo e oases for the

united states. just factually so that we are clear about this, although those were tough cases for the unite states, they were tough case based onefelc eofrlva en hdo ag ie an had been enforcing in each of the particular instances actually in the prior administration as well as this one coming and you know, part of the job when you are the sotoeed liorer oe o nd eontsi of the federal agencies, especially when they are longstanding and well established and sometimes youe going to lose those cases and those are tough cases, but in poesta w asue in'sor t rs hertu longstanding policies. >> mike carvin? >> i will pick up on the last thought i guess. it's true the solicitor geral

is often inhoesregeg ci athy mai the supreme court. and i think it is quite clear they were seeking to expand their ability to regulate chches hiringdcsior oy dionti ep tawswl roale courts that your ability to eliminate deployment discrimination didn't apply to somebody that was a minister, and imediately there was a lot of confusion about who qualified as a minister and who didn't thfoenli i think that that wa t o mos rtachs attention on the brief the government filed wasn't so much the bottom line position as the mode of analis where they argued that the free exercise clause didn't give churches or religious institutionsay ecitegrn teenvekihe sticistat go to the heart of who is going to run the ministry, and that position

is rejected 93 go zero by the supreme court pick i think the solicitor general position is you could get som protection thugte g t fiament hcur looked and there's a specific provision here that deals with religious institutions and the notion that they've got only the same rights as anybody else under the religion clause doesn't make a lot of sense and i fuy agreewith that an be csi ntheea ohsn us under this decision in the court in terms of eliminating religious practice it is sort of a nondiscrimination rules so long asthis present to te general applicable rule you n st pple om xci r gi wh ak teytma you have prohibition them catholics can't have communion which is in my mind unthinkable, so i think there's a lot of ension between the notion that you saw in the urt's latest pronouncement th churches ave gergs o cen

rmo eine ndimiomndte government and some of the things you saw in the division versus smith - case which seem to wipe away some of those rights all of which will be implicated in the catholic church affiliatedhoc cocevedand tt fole ae act. >> in terms of long-term enforcement, i have lots of uneasiness about it. i think that might apply to the case and it's pretty clear that is not going to be enforced and i'm noefender fthe oa utt e tlat meecty. actually looking at the particular statutes, i think thatt is not a longstanding policy to give a narrow interpretation of the free exercise clause is as is under the earlier administration and uty nfibosnre it is su llalhae t toe goto go one step further which is i've always thought freedom of association should

dominate against antidiscrimination cases except cases of monopoly. and i would go so far as to say untionala tuff is completely theast wts this is you do not want the government or anybody else to have the same as mike rightly says we now have to do is that religions get hemselves greater prerences from everybody else because afealtthe ut anisinn ant heu esling religion or you are prohibiting its free exercise. no matter what you do you are always wrong. if you have the freedom of association position applied to all people of all times and always, yo on't have to worry about ose ndof embarrast. th jhao ohme ime lbur ats fast by returning to contract that will as opposed to the government imposedandate which will essentially never make things work so the thing to understand about this is that the data structure of the anti-disimination w h is

esabaccepted in case you do i'm not a very very respectable person. [laughter] >> getting a sense of that. [laughter] >> the central theme here is every time the congrs does laistibkwaror oneyet into trouble. the nondiscrimination principle is an anecdote with respect. it never should be applied in the competitive markets and when you do apply they will end up with stuff like this. they did it backwards in this inh ptiwehe republicans ran this operation navigable waters of the united states meant navigable waters of the united states. then it becomes anything which has effect on navigable watershey did to tht cocebsihe substantial effects test instead of saying are you which is what the constitution asks and then what we is get an

administrative policy wch essentially wh it comes to on ilthboon h oltawoeter into the navigable water scarring it forever. they don't care what the 999,000 times in which this is over protection. and iteems to me that the common-law rulewhcs ncs rve ae ririoly efo t the government in its environmental. collectivization of remedy is designed to handle the coordination problems. it should never allow the government to have more for than the individuals that ote r ever prtae poedgtgsy se c not get so the fundamental mistake of the modern environmental movement is the moment you bring the central government. it becomes essentially unlimited power and you see what's going onuihae broader

those by cases that are so regious people a willing to do it if you actually fought back the first principle most of the permits issued i the united states are professional busywork was essentiallydestroys the st w d pouabric oit an t'mnggot step further given the fact that the structure of the act is so crazy and so forth if every time you have tough standards we does perpetuate the use of old d dirty so thnet efctft a pn ee environment has increased the total level of pollution in the united states probably by tenfold because they simply don't understand how the whole system is put together. as el niño que you have heard from the scholars. [lauter] wi te heroh ce eaain microphone has reached you so you can then give your name and your organization if you wish and en ask your question. let's start in the back.

get a microphone npee r ahek question. we will see if the microphone is on. >> stand up. >>quonfoe solicitor general and t components during the oral arguments i was wondering if afterwards have you read t mo hihv[naudible]ere was eve a since i was wonderin in the court ruled and theappel de was there any indication or what was that the motion? >> i will repeat the question for the audience that is watching and that is question thtsutreformance and how might it have been

upgraded if it were seen at play analso what were your thoughts were you vindicated by the decision? >> let me answer that question thy. weloualtlee da ofs arrp is to protect criticism of government officials and exercise of their professional responsibilities and efficient responsibilies. m a vernntic cciiky thurrent official with the lady responsibility and i guess i was and i'm okay with that and that's just the nature of the process and that the way that [lteholdb. >> i just want to make two points. one is ient through thisith bush v. gore you get these

-plees autiy n mca e's 100 million experts in the commerce clause and i always like what if you give me three days to sit down and tied up and answer to what was just shot at meaybeeengul- isics easy to sit at home and parcel of every party or sentence. don can't make this point, but i think there was such a literal echo chamber in tes of ow stng grn'sru s twa a llth er au i think it the case was much more difficult to grapple with the commerce clause level then the liberal intelligentsia have given credit for someone that wasn't a perfectly satisfactory answer andwhen t jce epicaiea poontsund, they attack the messenger. i don't want to get into any of the other nonsense but i do want

to make those generic points that the guy is are always went to get a disproportionate amoun shot tm 99 o h im is perception. >> as somebody that hasn't been involved in the case, i thought mr. verrilli made someood arguments from some bad arments but what was notable shhehtor hharlie rse argument, and jeff was in his swaggering best style and all the rest of this stuff. i look at him and he was slightly crazed which in fact he was under this thn dosarei iis wa >> my view is that the government should have lost called because the corrective for the supreme court to overrule which has no constitutional foundation whatsoever but i don't expect bueee dcomesgme

around and all of a sudden he's kind of embarrassed and he takes it out on bond. what is interesting about it is every one of these guys that said that mr. verrilli made thet it as almost risible in their effect. so when we leave these characters are explaining why the markets must necessarily fail, and paul krugman is supposed to know some economics -- [laughter] us othatsda qeoneause they didn't want the market. there is a long history in the sort of health insurance debates about the difference between social lunch in san the insurance and social insurance is not a subset of insurance. it's a comletely dferen e. th osue y iih to pull chris and transfer risk from those people that will do the color of less risky or whenever it is to

individuals though voluntary market lover agreed a priate uncompensatetransfer. at markets c d scn pe ahemkei working well, your insurance has to reflect. they didn't want to do that in this particular case. they wanteto socialize the risk. at this point you have to use a degree of coercion to say that ma'sy r wealth, markets will they don't redistribute. when there for the start talking about the failure of the private market, but they forgot to do is talk about the difference between the two forms of insurance. threason why the case is so difficult for the government under the circumstances is t sianly on one hand is that all these folkfree on the system but that is the tru and you have to require them to buy the market rate insurance against th losses. the bill and that also requires them to subsidizerdyt ling dre ben ton

it's not an easy thing to say that you've got to inconsistent purposes and i think the correct answer for the government is we have to do both and we are doing bo. but it's a hard argument to make and yo toomuhwiht he aig h th ien heng sound very awful. the scheme i might add as defined by the administration is the insurance. the way to handle this problem oneq wngrtwo this. re exngnonkckin nec require when you buy insurance to keep it for at least a year to allow the insurance company to the penalty on so you don't have to getyurself involved in the mandate question. the difficulty in the administration is not velilt eny thogr otecostbo in the administration is prepared to talk to. a piece of economic gibberish that kind of put itself into the

name of an insurance situation. it's just a terrible piece of substantive legislaon e maat tea ft ros. d s yathe w wbe rocky road horror show. [laughter] >> please raise your hand high so i can see over here in the back row. >>r ahea e ti. >>a ctiiv rp ti. professor it's good to see you again. i was wondering if you would discuss the possibility of the discriminatory effect in the enforcement of the provision of the arizona law that was upheld. abo ulo ogil peowhlk ilvee speed limit, that sort of thing? >> my general view about most public officials is that they have been so schooled in the dangers of discrimination wit respect to enforcement that they bend over ckwas totry o oiesndfsts. hhtncnth henry louis gates and it turned

out that the guy was in fact the master of teaching people how to avoid these problems. i think the correct answer is to say that you pursue the legimacy of government action baoutyon sthinivenhi serious deviation. in the states like arizona when there's so many people in hysterics who are citizens this would be a reckless policy. i do think in effect hrs alyss. buerahe er skatowi nove wato dseind of conflicts and that you don't try to uet a scheme on the ground of potential abuse given the fact that it is i operation you see evidence of that abuse and i dothk thhisparl sebo hoaon thid thdsd at the arizona police or public officials must be av in any systematicfashion. >> anyone else want to comment? if not we will take the next atneatfiled thedown ee

americas in thefisher case. i wanted to ask the panel in light of justice roberts opinion in the affordable cae case, do you see anyeasolelmi o goment authority to coerce you to do something by imposing a tax? if you don't, could the governme now say you must buy general motors or chrysler cars oueayel era extxbcu you have a stake in gm chrysler. you don't have a stake in anybody else. >> i don't perceive any serious limits on that. in fact they don't havto call it a tax. thmetu mcr puue teta tas engaged in this and say it is just

enforce like a civil penalty so we will call it a d tax. i don't know why the can require you to buy a gmc our aat foul a eatejue desm limits to and from 10% of your annual income it's not much of a limit and then of course the next sentence he said we have abandoned this whole analysis whether it is a penalty or tax so all cas the cis noge widn't come around with a warm and fuzzy feeling and they will be the political check of people not wanting the taxes raised but again if you get into these debates they will be more about whether the eficacy of eating brocco is oodinwhe u tana ox dt i t'sng e c ofa political the accountability to be paid in the future. >> we do have mayor bloomberg in the obesity situation that this would be my reaction in the political front. kilo comedow it g

ascs. sofar wrong that it's almost painful and it's interesting it's wrong on the same kind of question the tais wrong. the definition of what counts as the public use is anexpenditure from public purpo sxaded di wto i lace is perfectly okay. the reaction to kilo is the states tightened up their rules and the level of actual condemnation of the property had gone down, notu. my vieabout it is i thin f ybtrtncendtuhaupo place now it would be harder to get it through politically than it would have been before the case because it is going to be much more difficult to keep this under the radar somebody is myope d i beiv at is going on. sus shaha fyu wy in which the government sort of runs the programs these are all

the domains which are churning of eutis. boarhasa b you don't like it comes to us and you will deily the application so you will lose. i do think now that after the medicate extensn there will be more attacks on the way in which the govement pomulgates oblitions in the rulat d oh llb e lvng erisothing in the roberts opinion which i think helps, but i do think there is a great deal in the publicity to let people feel uncomfortable about the whole situation that the politicaprice for going forwardwll the political front is the attacks to the reconciliation rules would meet a supermajority to appeal to readers get so for votes would get out there. >> since this was ayothetical opnhr.ougtere

out comment? >> the court opinions are on the discussed limits i think they speak for themselves. >> the next question raise your handi, pse. ov here. >> my name is margo national journal. i was curious what you think about the leaks that he of appeared to come out of the week of the next year and the sort of leaks that have been coming out of the court wth a you think -- what y thibo d he ip ooo bfr hur n he public's understanding about how the court works. >> the question that has to do with the leaks coming out of the car recently, comment on that. >> since i have no connection whatsoever i don'tike leks omout h oud on hengtrd concentrate on the academic issues raised in the cases and not on the personalities associated with them.

in the and they make the judges and the justices and the effect on its overallpraan mao lmoh at they wouldn't take. if the yell with each other and they don't like each other that's fine but let them do it in private and i wish the journalists would back off of that kind of stuff. cril pcry ea todoy t itn. it's extremely easy. extremeldifficult to build it back up again. >> any comment? i'elleotau uai'he one aking the controversy will comments at these things. [laughter] >> i'm familiar dsert after this. [laughter]

>> you understand it wouldn't be appropriate for me to comment on the sort of speculation. >> that's one thing that we ll tharee o the second pain diatcnt t suggestion. over here. >> i understand the need for -- >> your name, please. >> by understand the need for the solicitor general's offic buyi the obama administration enter into the university texas case on th side of the university and in the administration's position are there any limits at all on --pys? race anddinit >> i wasn't at the department when the decision as made to file. if i was i probably wouldn't appeal to answer ur question

any way because the wuld be ec eoraive h e department guards very zealously. >> we've noticed. [laughter] >> the department has judgment to mae about whether to fle ie ewairmae ad wh o action but it is not the conventional view. i take strong exction to what the supreme court did in the seattle case and the other case. the basic problem is that the govement oes t tgs o twrdat ic. one of them is that it basically in forces and gets people love and under that situation the fault of a colorblind nstitution seems not only to plauble but completely required. rullotsohn that shouldn't in putting public

schools, and particularly public universities. if these were private universities they could have whatever racial policy they wanted, and what would happen this td everbol ow b w dpp om feoeuie s could run their affirmative action prgram. my own view is a bit of an extreme position the factor correct position is if you are running one of these ompicated nion huiss dg tplin the way that you decided to devote and organi your resources. what is the test on this? stand i was at the university of chicago and i did not come forward an i sid to you thi thntitioqs f ndooeoon i think private institutions should be colorblind. not my positn. my view is i think i could run these things better than te federal government. just don't bother me anore and

t meo it inwe ohv pi erieheeobn some of the discussion would give come and so the basic level though i would want to apply there is that the university of texas should be free to organize thn ct is very different from the current situation where you have this stupid situation in texas whe when you have the direct prohibition agaist sensible affirmative action programs you ca't organize you sc ahaodig iy and furious body by using this proxy than you do if you run the licies in the opposite direction. none is and be happy on how muchffirmative aion at d. unsoonthams tat thinks problems in the middle east by just reasoning with a few people.

the key future to do in this thing is to have the central list decisions even within the university of texas system w ch atculaamgon and decentralized judgments will outperform course of judgment whether it is mr. verrilli on one side saying you've got to do it or mr. carvin on the other sid saing you can't do it cageteiaepti aeure ut w it is substantive positions unless you have experimentation and you can't have experimentation if you are always going to have the monopoly positions coming one way or another saying ou can do it or you got to o itwhich is thi-discrimination law because they have such rigidity than you get these flip-flops' which make it difficult to do the long term planning because you never know when you've got republican or emocrat in office orhllt v ago

bbngthsae courts. some of either the other people want to comment? if not, then let's -- >> isn't it wonderful to represent no clients? [laughter] that's why you've doe. dthsla fre ma >>det georgetown law and this question is for mr. carvin. at the outset to discussed the president's statements and criticisms of the supreme court as being an unprecedented and i was wonderingf you could copangpl idesnecause given the eme sa alpk. spend i'm not saying there haven't been attacks on the court that are equally motivated as predent obama. reverb precent obama did he didn't criticize the court the thegoentavoin ro fe court. newton see him questioning the patriotism of judges if they

rule against an unprecedented wave struck down a law hat actually was passed with br t t statesmanlike thing in joining before the conservatives to uphold the bush detainee and coressional enactment in that area. so i think it is unquestionable that it created anmhe e e i mpt by senator leahy on the floor at the white house and other allies to try to intimidate the court. one of the aspects that have come out in the last couple of weeks is a gives credence to the notion that this kind of atc i k rltly mphithrr to act. they make their arguments through the solicitor general and stay out of its. i don't think it does anybody iqution any victory

just like this on this and be subject to question for a long time and i don't know what good it gets out of you and presumably that's why we give the justice lie tene so th don havto aen o iso onse. >> one point to add to that and again is the state of the union address wih the sitting justices there where they can't talk back and you e justi o. at vpi gfr any sitting president of the united states to do. he has his views on citizens united. you said at the time and we are happy to do it. isalqstoftht looking at these particular evens it has been the line of that particular president that these things take savage and the second point i think that has to

be made a i was ale and remberteruenar ocarvuca a ent si came down use of the headline in the paper the commentors and hen there was academics but the amount of coverage the amount of pressure what was probably thousand vo was in tere? ant'st ts thindividual mandate relative to the system segregation in the south we know the question is more impornt, and you would just hate to have somebody from the southern common their somebody say look, you know, plessey and ferguson habe on polynht olsu t ctusurpation and all the rest of this stuff. so i think that what he says is correct faugh you do not speak about it outside of the court outside of thedsignated >> obviously these are political

points being made. i'm not going to get into those but i will say that with respect to this and generally here, the righco is suha ac wiit eae do believe that to be the case. >> on that happy note, i think we will adjourn this part of the panel. we wilbe replaced in a oent atso heurstomtyt before we do that, please join me in thanking the panel. [applause] stomach and put it reporters from "the los angeles times" and the associated press.

>> keshapse k alrnd ests and viewers on the radio and tv. i also want is the three's rachel and the connections department and co-sponsorsof the legal center that heritage d it's been a specialpeas bee he saieymc more humble than the lawyers and they wanted very brief introductions in fact i think david savage would prefer that his nameot even prefer on the gotoak h isd'te inrt e fit speaker will be mark sherman who if my math is right has worked about seven years on thesupreme court full-time supremcourt brief for the associated press he worked about 20 years befor htrprg politics and justice department issues and before that the

constitution his bio says he began his professional career as a foreign service officer later on ou can regale us with how that gavyouight into d coaiwwod - npv yet he is an appellate lawyer in his day job or we are going to skip over as a litigator sheis our new media representate e panel. itede adi hehaapaling pilat blog which is now part of the legal affairs magazine at work. it is one ofthe essential blogs thfowith pc lmts, and i would recommend it to anyone. he's also a columnist since 2000 for the legal inteligence with the phadelphia daily newspaper for lawyers. rein ta,wardnl ot

actually has spoken of the person before, david savage says he always brings heritage audience bad luck. i don't agree with that but he is the dean of the supreme court press on this ae reprng yesuer or haanar g catch up as the dean of the entire supreme court press corps but he works out of t washington, d.c. bureau forover 25 years for te l.a. times and for the past fo iya "thi tne as well since they've merged he is the author of the book "turning right the making of the rehnquist supreme court," published in 1992. perhaps we can get him to tell was e reagn,rger t't as much a right-wing court as much of us hope but

with that i will turn it over first to market. >> thank you very uch. la wisk pisti pth irphese you so it's picked up for the tv audience. i just wanted to start by talking a little bit about how i spent most of my sping, which was like most of my colleagues looking for any sort of sig y ini ow trtwa cae tice what we call the body language theory of the constitutional law trying to figure out and there was only in retrospect that i found a undeniable clue to how the court s going to come out in the health care case and thatas on 1ofhs erjs ginsburg went to the american constitution society to give a talk about the term as she often does towards the endf the term she will describe the cases and not actually hint at what didi this term she said

this has been more than usually taxing, and i thought -- [laughter] right then and there it was a giveaway and actually asked shsn ntndo and she asued e reow tut oat th press corps and i think it is the case many of us fought the body language as the spring went on might suggest the liberal side of thecrt was going to preva on the health juecsceay arizona case >> i just want to say a couple words out the outcome of the health care case and i won't get into the details with the last panel did but it was only the second time in h iote urech jcepoie h o the so-called liberal outcome in the case and the other time was in his first term on the court in the case

caed jones v flowers which was about the proper notice of a tax rfhaveas nsntby m a iempwe so far faugh power. the markers that were laid down in the se regarding the union fees and even in the healthare cl anl ning ocommer es w lk say that whether those markers are brought to bearis largely depeent on the future composition and direction of the court and that will depend on who as presidentgt m aptmsos inatowe public is more evenly divided on the health care law since the ruling that was previously. and i think we certainly would have expected both the president and democrats to try to use the cotit ostive ris apnise lut se of the court

had struck down law but i think that maybe the single biggest thing that chief justice did in the political realm by casting the vote to upho the lawas haeea fairly devastating line of attack and something romney already started using in the run-up to the decision had been strucdown republicans would have said a tree and a half yea into his ter was the president he tohow for what he bled thee ste of pidy thsuulve been nothing. we don't know what role it will play in e campaign but i do think that it's worth noting that might have been an effective line of attack >> aot ttalk lite whitinol aue might have been the most surprising outcome of the whole term. that is a case i think many of us thought going in that once the court decided to hear the

case, and bas on the argume, wewaeexmxe tcome which we did get in that some provisions of the law were pre-empted and someone not. but what was surprising i think is the one of justice kennedy's reallywas almost acmptehich orfthe inat s oe at that section to wasn't ruled pre-empted at this point. even more as a prison - th that is the fact that just the chief justicjoined in a hole in that opinionnd so te inlu jcet -- sotomayor the the court had just let it go forward the so-called show me your papers provision of law. i think when you combine her silenceth jsice saia's ceongcur e gndeho tbg of a when this was for the

administration. i also think at this point that i would like to say a quick word in defense of and in praise of what some people call the insteam mdiwhch iall he are case we have heard a lot obviously out what happened in a couple of the cable news network's but i just want to point out that the associated pres lobe , tewe alwefr thrk with our reports about the health care case and we were also entirely accurate, and i think that has been a little bit lost in some of the look back at what aswilsa upn thady words about a set of criminal cases of the court this term because it turned out not to be a bad term for criminal defendants that the court. early in the termwe had a case

th alama dth owinma atesslland h eam and the court ruled in his favor to grant him a new hearing to try to fight of his death sentence. then there werthe other cases there was a case in which the court exteded the fee clms tthe ain h co d that a legislative effort to reduce the disparity between crack and powder cocaine and crimes and whose crimes wer committed bere the lawasut fiy adjudicated afterwards, and also the case involving much the court ruled out mandatory life without parole sentences for juvenile. all three of those cases were five t our cases,ad re oe waor usual alignment with justice kennedy sided with of the liberal side of the courand the chief justice in dissent

along with the other conservative justices. and my final last word is just a prsop adinasabout what ch ery much presented as a case of big government against the little guy and it was a effective that way but the only point i want to make is while it wasn't a part of the rerd was very much th case that they cedomebiolst that they had hired up their land was what plans. it wasn't part of the case, there was a slightly interesting fact i just wanted to poinot [aus >> good morning and thank you for having me here today. this term certainly was a memoble one of the ten years vebe rinaml h

pra oytesenme at the end of the term where it just became the super bowl o the constitutional law. the court always keeps the most difficult cases until the end, and the only day that you acally kn what cas ae in coust ofte term. so tensive not hundreds of thousands of people were turned into the blog of and cable news network's and other nws outle asrsndct'i otofind ouf th website was so inundated with visits that the court couldn't post the health care decision as promptly as it ordinarily posts decisions and so why could not access it from y office in mog h a3 untilaot 0: nuafit asin the press office. so, i was glad to finally get a hold of it because i was going

to the phillies game that afternooi was able to post a ofcu aedmna i head out thedr e ews for at least one news cycle until tom cruise and kildee homes announced they were getting divorced and then t case was finally removed from the nation's attention but i'm sure the people wuld be mullg veo sadyr yas y ide oc on three important but somewhat lower profile cases, two of which a rise out of the criminal category but are not the ones that mark touched on, algh teae ol tes case. in the case that's called williams against illinois, the court confronted a criminal defendant who was foud guily bad on an aid lat en

included some samples of bodily fluids sent to a dna lab, and the lab test of the floods and laerect an dna profile, nd then a plei entire database of other dna profiles and found that dna profile was the profile of the defendant charged with the crime. the question in the case was whether the criminal defendant had a confrontioncu to e ssmi ro sthegis at the trial the only person the testified was the technician that ran the test for the match thathe lab produced matches the one the was in thsystem o the person that actually ran thh ee tefnt was not at trial and therefore didn't testify. and we're in an age today were as we know jurors expect csis

hasipeo ve.den an do but the court held was by a splinter a vote of 4-1 courthouse with under the circumstance invnnonjy trl tnntd igo ssmi the person that ran the original test against the defendant's dna. whether the holding will apply in a case tried the jury without holding will apply in any of theaseis nti clatht d foatispeua the existing confrontation clause case many of which even before this one had been decided by splintered votes. a seco case whichas an interest because it ises out of its third ccuithat am atieom who

was stripped searched at a jail after having been arrested for a misdemeanor offense. a number of years back maybe five years ago the court held that if he wer arrs--i ha vte idemnor offense the officer has the right to arrest you if he or she wants to and one of the consequences of that is that your plug into the police station and may be held past the time of your address and put an niidwutto hand his stndn the course of being imprisoned in jail was forced to undergo a strip search to check for contraband and the court to thereby voted in the in cof misdemeanor, but the chif justice and justice alito issued concurring opinions that sought to limit the applicability of the holdin

thliral juicecided in canheth il hobie a case may be one of the few cases where paul clement kennon to a buzz saw as opposed to seeming to have most of the justices on his sidend his was the tied arour verss cifinai d h case, the petitioner was seeking to obtain a refund of taxes paid for real estate assessments involving the swer hookups and what hapened there ishe taxpayersad an pi upntot of $9,000 or pay interest for $30 a month for 30 years if you prefer to do that. what indianapolis decided to do about a year or so after the land owers paid the full am, id wyth t icular tax and they said we are entitled unde the equal

protection clause to get a refund of the amount repaid because we've paid the full amount and other people just pa $3,000 of the 9,000 83 they were onlpaidfrr whhet ht the court held in that case by the 6-free ote is the equal protection clause didn't give the people that paid the full amount of the tax to t a refund because the city had wati n gtarfuns w it twach justice thomas and justice kennedy joined with justice breyer, sotomayor, kagan and justice roberts foa very strong disseing opinon joined by justice scalia and alibt saai tr s at the way things go in your large grumet doesn't necessarily tell you the outcome of the case because in that case, paul clement did when even though many people hat saw the oral argument tught he might nt win. tnk you so mu forhang

me today. [appe] >> david? >> it's good to be here. i said todd earlier it is a mistake to invite m not because i am a distinct legal speaker but because i've been here afew times before and i seems like i'm always here i ht enelia i he s he yhe conservatives lose and the audience is, so i apologize. i don't think it's my fault. i must say as a journalist there is nothing has fun as to ave a th on both parts of its. i did think that there were a lot of surprising developments in this term. some of them got very little attention. the onthat rkeduted o is the criminafets e cimina cases this year. there was a fellow named antoine jones, a drug dealer selling

drugs in the washington ar. his case comes up. his complaint was the tracked thwsicly as devic ovt tryo road. if you go out a few policemen can follow you. you don't have a right to privacy. there were two different opinions. justice scalia said the government attached his gps device to the jeep hh anut ao e brthe opinion for the sort of liberal groups saying you do have the right to privacy. the government can't track you indefinitely with a cell phone or whatever. i wouldn't have guessed the outcome. i thought of as a sort intesting surise i tnk fu.eimact e paban ta way i wouldn't have guessed that these people voluntarily put guilty. they got the sentence, but the supreme court reversed and two different cases. one fell a head and shot his di nenriustaa

shot her in the leg or tried to shoot her in the leggitt and he went to trial is a trace it you can go to trial you will be convicted of murder. will he was convicted of attempted murder and they said col.ffecof hesic hee a frfve along that line. i don't know what to make of it. you just don't think this is a court where criminals are always good shape, but it turned out to be that we this year. the alurprise of course is weuto the decisions, the immigration both the obama administration and on the health care case. the health care case wasof a haenoi oeuse mntudeh when you think of it, this is a situation where a big regulatory law is passed by democrats in

the house, democrats in the senate opposed by all th deapresident. today signed a group of republican attorney general's going into court saying this law should be struck dowas unconstitutional. i think it became6 republican, sh bsrdtlyrgumens t it n'vit don't amend it, don't take a check out of it. strike it down entirely. ..