wittes left off which is i do think of a we might disagree but the actual circumstances we would all agree there are some circumstances where the government is allowed to use lethal force even against its own citizens. that's not to say this is a good thing. it's not as a something we should be happy or proud about but it is something i think it's important starting point for this conversation. so in that regard the question really is and whether the government has the power to use this kind of force, its win. that's what i think so much of the statement you've heard already today so much of the focus among commentators has been on this question. not as a site you, not because judicial review is somehow a proxy for the larger conversation, but because the real concern is are these operations being carried out in a manner that actually passes legal scrutiny? put another way, how can we be sure given the pervasive secrecy that surrounds these operations that the circumstances, the criteria, whatever the law we believe to exist is, has actually been satisfied in an individual case. and, indeed, in this regard the

white papers is curiously silent but it suggests the review would not be helpful for reasons that my friend and colleague has alluded to. i don't disagree that the our concerns that would arise with x. and to review. what i would like to be in my remarks today is explain how congress could, in fact, provide a far clear, far less problematic than the that would allow these issues, these questions to be resolved by judges, migrating a cause of action for damages after the fact that indeed to my mind the only answer to the hard questions raised by targeted killings are for congress to allow courts to intervene. not beforehand but afterwards, just as courts do when our law enforcement officers use lethal force in those exceptional circumstances where they feel compelled to do so. let me explain how this could work using various examples to eliminate. first regard to bring a cause of action.

as this committee knows when congress enacted the foreign intelligence surveillance act 1978, when the provisions it conclude was an express cause of action. even for a secret surveillance program, section 1810 of title 50 provides a cause of action for damages that provides even for attorney fees although i wouldn't get that excited at the point in the proposal, and so have this model in fisa for congress provide a retrospective damage is even for presumably secret governmental operations. they would still be other potential procedural obstacles that would get in the way. so for example, the state secrets privilege that the obama administration has found its predecessors and begin invoking these kind of cases. but as this committee knows there has been very's proposals floated in congress in the last four or five years to curtail the state secret privilege. example of a state secret protection act that was proposed in 2009. whether you call them on a state

secret protection act or not it certainly would be easy for congress by statute to provide procedures pursuant to which these issues could be resolved while protecting governmental secrecy. one could model those procedures after the classified information procedures act, which this congress passed to apply to criminal prosecutions. one could also look to the guantánamo habeas cases what the courts have actually fashioned they're all packed form to allow for those disputes to be resolved even with classified evidence. the model for that is not to allow the individual litigants to always see the evidence that a security cleared counsel who so far as we know have to do not disclose a single item of classified information as part of the guantánamo hearings. he also questions about official or sovereign immunity but congress in 1980 and a whistle act provided a way around that for certain court claims against the federal government whereby the statute congress immunizes federal officers and substitutes the federal government as the

defendant anytime an operation that falls within the scope of the cause of action is carried out within the scope of that officers employment. this could be followed here. now, this begs the harder question what exactly would courts be returning on the merits? mr. chairman, i think we could have four or five hearings at the least to answer that question. let me start from the proposition though that this is a question courts are not completely incompetent at handling. in the concept of law enforcement operations courts routinely look backwards after a legal use of force to decide whether the officer reasonably feared for his life or the life of third person. courts look at the circumstances through hindsight even those are concerns about hindsight bias. so i think if we could reach some consensus, mr. chairman, on how to resolve these claims on what the law should be going forward, it would not be that hard to empower courts with the benefit of hindsight to entertain these kinds of claims. now, in the conference, justice

frankfurter suggested the increase the dangerous part is not an entity. it does come slowly from the force of unchecked disregard of the restrictions. it seems to me, mr. chairman, that the target killing operations by the executive branch present a legislature with two realistic choices. congress could accept with minimal scrutiny or oversight the executive branch's claims that these operations are, in fact, carried out unlawfully and with every relevant procedural safeguard to maximize their accuracy. and thereby open the door to the unchecked disregard of which justice frankfurter warned. or congress could require the public to defend these assertions in individual cases before a neutral magistrate -- by the constitutions saw it and tenure protection. so long as the government interest in secrecy are adequately protected in such proceedings as long as the operations are consistent with the constitution and laws of the united states, what does the government have to hide?

in closing i just want to make one last point. as suggested there's only one supported case of an operation specifically targeted a u.s. citizen. it is reportedly there's only three u.s. citizens who have, in fact, been killed in these operations. but if one listens to senator graham who, given his role in intelligence community would now, there are as many as 4700 casualties, 4700 people who have been killed by american drone strikes. i'm sure many of those drugs were legal. it's possible most of those strikes were legal but i think it's important to keep in mind as we talked about drones and accountability for the government were not just talk about anwar al-awlaki. i look forward to your questio questions. >> thank you. thank you all for very good testament to our begin the questioning with you, mr. bellinger to the white paper tries to establish that were an american citizen who is a quote senior operational leader of an al qaeda or an al qaeda associate force of al qaeda

poses an imminent threat, the capture, and capture isn't feasible, the u.s. can target and kill him. according to the white paper imminent threat and the feasibility of capture or now well-defined. do you see any problems with the lack of specifics in these definitions? >> thanks, mr. chairman. of course the white paper is a summary of from a 50 page summary of what is a much longer legal at any. and as you've explained, most members of congress have not seen the entire legal opinion. having been both an executive branch lawyer and have also been counsel to a senate committee, understand the state play. i do think the administration, while perhaps not providing the very opinion that was provided to the president needs to be as forthcoming as possible on these very issues about eminence. i agree with the point in the white paper that eminence cannot mean that a terrorist is about to push the button tomorrow and

that's the only time that you're targeting. we were dealing with terrorism, we were dealing with nuclear weapons programs but has to be a longer lead time. the administration is trying to explain that both in the white paper and and and attorney general holder of speech but that's a very controversial concept that a think has been troubling both to americans and for me as a former state department official extremely troubling to our allies. what point is the u.s. saying that they will target some of if this concept of eminence is really redefined to be a very, very broad concept? speak let me take a step further. it's not just telling but it's also other actions that congress has required that the military get court approval before targeting an american citizen for surveillance, which has less consequences than killing them. even in a foreign country. so why shouldn't that requirement extends to a

targeted killing? >> this is, in fact, one of the great ironies at the broad conceptual level. why is it that conduct electronic surveillance of an american, the executive branch has to go to a court for to kill an american they don't? the reason is about 30 years ago, we want to set very specific parameters before the executive branch does that. congress could do that in this case, and i think that something this committee ought to think about. to a certain extent i do believe as you heard from my colleagues that this may be solution in search of a problem. the united states is not out regularly killing americans. that said -- >> no, but it's good for the congress to make sure that they are not, to. >> that's right. and even if only one american has been killed, if congress on behalf of the american people is concerned about the government targeting people, i think congress could reasonably pass a statute that says not to require judicial review because i really

think that is too difficult, particularly in a war, in an armed conflict, but specify the circumstances that the executive branch has to satisfy before the target americans, and then to require some notice and reporting back to congress. that's the check and balance. >> let me go on to mr. chesney and mr. wittes. first of all, mr. chesney, does the white paper provide enough information about why the administration believes it has authority to kill u.s. citizens abroad? i'm not talking about anwar al-awlaki. the evidence is pretty solid he's a bad guy and in the end -- he got the anti-we deserve. i would note from a mr. wittes analogy touch of collateral damage, you have to pay attention to there. and in this case his 16 year-old son also a united states citizen and not a senior operational leader of al qaeda was killed in the same tactics i would like

you to tell how we can refine making that distinction and protect the rights of law-abiding u.s. citizens. i'm not saying his son is or is not but i think that's a legitimate question when we know that he also faced the same demise. so mr. chesney? >> mr. chairman, as mr. bellinger said, it's quite possible that in some of the documents the committee has not yet been able to see and certainly we haven't seen, that there's a much more expansive exploration as to the foundations of affirmative authority to target administration is claiming. that said, it is a fair amount of detail given in the white paper, the core claim of course is the 2001 authorization for use of military force is pertinent to al qaeda membership is woven into the conditions that are specified both in attorney general's speech and the white paper. the more interesting question of course is what about threats that are of similar magnitude, summer threats to american lives that don't arise from within al

qaeda nexus? as mr. bellinger pointed out in his opening remarks, a dozen years removed from the 20:01 a.m. you have, the nature of the threat environment united states faces has evolved considered and its increasingly the case that it is is not enough to decide the threat is al qaeda or the judge in the direction of those listed forces at a certain point we have to ask whether there's a need for a clear statement from congress as to what range of situations the administration ought to be in bringing to bear the armed conflict model. now that said, the white papers also careful against a distinct head of authority, that's the article to authority, the duty of the president to defend the nation when faced with threats to american lives. >> let me interrupt you because my time has expired and you want to get mr. wittes with an opportunity to respond to the same question. >> so i just want to respond with a to point about the hostage situation. number one, you know, collateral

death is a distinct possibility in a hostage situation, and it's one of the background principles i think that makes the and nazi supersized it's a possibility that you may actually accidentally kill some of the hostages. number two, i think, you know, the collateral deaths of u.s. -- >> that's also a case where the imminence of the danger to those hostages is very, very real. >> correct. in the coming of the possibility of imminent danger to the hostages speak as you don't doesn't have that with somebody driving around yemen in an automobile or where ever this particular drum tech was taking place spent yesterday to have the possibility of imminent death to people on the airplane that he is allegedly putting umar farouk abdulmutallab on spin i'm not defending mr. all awlaki in any way, shape, or form. i want to know we can do to protect u.s. citizens.

go ahead. >> can't i just respond to that? i think the answer to that has to be rigorous procedure to whether there's rigorous procedures, no, you want rigorous procedures both on the side of making sure the target is the person who you think is and making sure that you in fact identified rigorously the person who, in fact, is a lawful target. and you also want rigorous procedures that will be consistent with the laws of war, minimize collateral damage because i'm going to interrupt because i want to turn to my colleague, and i've exceeded my time. >> thank you very pretty but go thing i would add is i get it's very important, especially for the purposes of this conversation, keep in mind would even with difference would even with different scenarios and to the categories of cases. so the answer to your question i believe is going to change depending on whether the justification for the strike is

self-defense whether is, in fact, clear i in the threat to u.s. persons or u.s. interests, hostage situation, or an operation that takes place not as part of self-defense but as part of the broader -- between a stick and a con in those parts of the world with our active combat operations. i do believe we will have very different answers to your questions depend on which category we are talking about. >> the chair now recognizes the ranking member of the constitution subcommittee, and the gentleman from new york, mr. nadler for five minutes. >> i thank you, chairman. my first question, i must give credit to david cohen, i would just read the question he posed. imagine that russian president vladimir putin had use remote-control drones armed with missiles to kill thousands of quote unquote enemies throughout asia and eastern europe. imagine further that putin received a note any of the killing and so this would in general terms that he had the right to kill anyone who single they determined was a leader of

the rebels or associated forces. even if they pose no immediate threat of attack on russia. how would the state department treats such a practice in its annual reports on human rights compliance? anyone? >> in fact as i alluded to in my opening remarks and at greater length in my written remarks, this is a real problem. it could happen this year with a poor state department spokesman is going to have to stand up after russia or china has used a drill against a dissident in the next country, and the state department will have to explain why that was a bad drone strike in comparison to the united states that, of course, only conducts good and lawful drone strikes. so that is extremely important for our government, both congress, but primary the executive branch, to lay down as precisely clear rules for the use of drones -- >> that's fine but isn't it the

case that if russia or china or someone were doing what mr. cole posits, that we condemn that out of hand? that we wouldn't say, well, this drone strike was okay and that one wasn't? that we would say -- >> if russia or china are being attacked by a terrorist group that was indisputably posing imminence bishop well, -- >> and the chechens were in another country posing imminence threats russia and the country they they were in was i want to prevent aphrodite would have to acknowledge russia's right to defend itself. >> okay. let me continue. one comment, something mr. bellinger said. he said we need due process, but not judicial process. i don't understand, i don't understand how i feel our determination by the executive branch official without any

judicial involvement can be considered due process in any form. let me ask mr. wittes the following question. you said, and the white paper says, we can -- posing an imminent threat consistent with the laws of war. my question is the following. i don't understand why we need senior operational terrorist, like images be an be an ordinary terrorist? i don't understand why it has to be posing an imminent threat. i think the analysis is completely different. either this person is an enemy combatant or he's not. it is not an enemy combatant, he subject to the normal criminal law and we ought to o abnormal e process to take them to court and so forth. is an enemy combatant he doesn't need due process. the question is how do you determine whether he's an enemy combatant? and who determines what he's an enemy combatant, was a senior are not i don't care frankly from a -- from this point of view.

but who can determine that, under what standards and what presidents do we have? on what grounds and how can the executive term that with any kind of other determination? let me ask mr. wittes and -- >> i would use it as a matter of law you've just taken a position that is far more permissive with respect to targeting than the obama administration's position. >> know, because i said you've got to determine copper reason he's an enemy combatant. >> i understand. you've raised county suggested a narrower process to determine a broader category, right? the obama administration has taken the view that it generally will not specifically -- it is not us are generally it can target any u.s. national overseas. it will target people only when they are an imminent threat and a senior operational leader who

captures unfeasible. so you're taking a few that is potentially much more permissive and conclusive of more possible targets, but with the concern about the lack of process on the judicial site. i would just say, i mean, i think it is a very legitimate question, what processes of this body wants to impose for making those determinations. my only point is that there's nothing, there's nothing particularly extreme about the substantive position, nothing extreme at all about the substantive position be administered has taken about whom it may target. and under current law, which is the law under which it confronted the anwar al-awlaki case, the case that gave rise to these memos in the first place, there is no basis for judicial process at all. there's no forum in which to take these questions. >> all i would say is i share

your concerns about the view that due process not a requirement of judicial process. i was surprised to hear the attorney general say that last year in his speech at northwestern. the only thing i think worth bearing in mind is due process is not necessary required in a pre-deprivation -- in other words, there are circumstances where the supreme court has said the government is allowed to act and then we will review after the fact whether they acted with sufficient procedural safeguards. and so i share your view. i think the point is that's not necessarily, not that this should be judicial process but rather is requirement that a some point some magistrate is acquired is reviewing. whether the government decision was made adequately. >> cannocan i just ask mr. vlado comment on the question that i posed, under laws gender come if someone is not an enemy combatant, you cannot target in

any way without due process in a decommissioned if he is an enemy combatant, the archived quizzes that flow from that, how do we determine -- if someone is wearing a uniform and normandy in 1944, it's pretty safe use an enemy combatant, abroad uniform. but in the absence of that how do we determine and under what state do we determine what he's an enemy combatant or not? >> bracelet if i may, the article v of the geneva convention requires that when there is doubt about the status of a belligerent there is supposesupposed to be here and t doesn't have to be judicial in. it can be administrative but there's some requirement that at some point, it doesn't have to be before you catch them, not before you act but at some point as soon as it's recently possible your ensuring that, in fact, the procedural safeguards that you have implemented have produced the right person. that's what led to the supreme court decision in 2004 saying that indeed we need more due process spent the gentleman's time has expired.

i thank the gentleman from new york and the witnesses. i recognize myself for five minutes, and have to make this, as i listen to the testimony here and we have gone into this decision-making process, i go back and reflect on the constitution, the commander-in-chief, and even though there's a little political tension over this issue, i don't want to disavow our commander-in-chief from protecting our americans, whatever we might be. neither do i want to delay his decision to act, and so we're confronted with this question. if we're going to review the decision, either we give carte blanche authority to the president of the united states as commander-in-chief to kill an american citizen abroad under the definitions that come out of the executive branch, or we define those conditions here by this congress, and then ask for a review, prospective as concerns me too much, because that delays the response. retrospective then goes either

to congress or goes to the judicial branch of government. and so that's the question that is before us, definitions, and i will say for me, it's got to be retrospective, not prospective. and i would prefer that we review here in congress by some form rather than handing over war fighting to the judicial branch. that's always conservative on the other hand that's the balance. so there's the question that is before me. and i would just ask each of the witnesses just go down the line and wait judicial or congressional review. the definitions i do think we want to try to address today precisely. but what would be your preference? >> both. i don't know why, i don't know what could have both operate side-by-side where individual victims of strikes if they believe are unlawful had recourse to the courts, and with his body has no oversight functions. i don't know why its exclusive

battle. i think they serve different purposes and i think they seek different interests are not sure why it has to be either or. >> been with regard to security? >> i think the guantánamo habeas cases are very good example for all of us. these are cases where the governments argument all over concerns about classified information being disclosed to the public, the media, et cetera. even though there've been some five or six habeas cases, on the fly with any single incident where any item applies the information was disclosed to those perceived in a properly. spent i would agree with that. mr. wittes? >> so i am sort of instinctively opposed to prospective judicial review of these questions. i do think the congress in the form of the intelligence community and senator feinstein have issued a very substantial statement about what the senate intelligence community at least

has done in the way of reviewing these strikes, which seems very substantial pics i do think some of that is already going on. in addition i have to say i find professor vladeck's written statement on the attractiveness of post hoc review judicially to be a very intriguing document, and i am, you know, i think a lot to recommend and i commend it to the committee but i also think professor chesney come who has in his written statement, attempted to narrow the categories of prospective reviews which as i say, i sort of viscerally oppose, but narrow it down to its finest levels whatever the least intrusive is a model that has a lot to recommend as well. at me, i largely agree with professor vladeck that there's opportunities in both. >> would it be your opinion that prospective review would delay

an operation perhaps? >> i fear very much that it couldn't. i also fear that the temptation on the part of the executive branch would be to throw lots of things to whatever judicial tribunal that was created in order to get, you know, cover for things and you would and up with a very substantial and unanticipated dialogue between whatever tribunal you created, and much actually the way fisa has done, you know, in many ways it a type of in the context i think in the targeting context it would be less attractive. >> i certainly agree that congressional oversight should be granular, serious, as much as precious fossil. i think that's critical. i think that's common ground for almost everybody. i think the hard question is the role if any for the judiciary as mr. wittes just a. i endeavor in my remarks to show, i do condemn in the marks

in favor of prospective rather than post hoc, but i do so only with respect to very narrow set of issues. issues that i don't think should be reviewed, including issues that are most of the time sensitive decision for the the particular persons in your site is, in fact, do you think it is. whether capture is feasible. those are features i don't think fit subject for judicial review. what i do think could be properly reviewed by judiciary, and i think in advance in order to give the branch certainty that it would include name of the alleged membership of the individual in the organization in question and the role within the organization. and i say this only on the assumption that we are in a situation where it's not exigent to turn that. thank you. mr. ballenger? >> i think i come out where we seem to be coming out. first have to decide is that the

problem is coming up so fatally the congress needs. we've only had one example. that said it's a very series example. so if we can get over that hurdle, i think congress could quite reasonably legislate one, the criteria of who should be targeted. and much of this is in the white paper but you might put it more specific archie. and then the procedures that would be required for targeting inside the executive branch. i would not require either effective or retrospect to judicial review. i think the checks and balance in our constitutional system is for reporting to congress if possible beforehand in a classified setting. that there's been a very long lead time with the targeting of mr. awlaki. executive branch could of gone into the intelligence community were targeting this person. congress could say we completely disagree. we think this guy is exercising his first amendment right. the executive to take that into account. certainly after the fact, if the

executive branch has targeted americans, i see no reason why the executive can't, and report back to congress but if congress after the fact says this is not the authority that we gave to you, we have real concerns about, that to me is check and balance. lastly, remember as you said, we're talking about an armed conflict situation, and so tying the president's hand one way or another before or after with judicial review in an armed conflict decision as commander-in-chief, i think there's a very strict problem. >> thank you. i thank the witnesses and they see the my time has expired and i yield to the true gentleman from virginia, mr. scott. >> thank you, mr. chairman. mr. vladeck, the determination has been made of the targeting senior operational leader of al qaeda, imminent threat, captione feasible, consistent with the laws of war, but did i miss it

in the white paper want to talk about the standard that is used whether it is beyond a reasonable doubt or moral certainty or preponderance of the evidence, or there is a standard not clearly erroneous? what is the standard? >> if you missed it i missed as the. i don't think the white paper goes out of its wa way to say wt the particular burdens. i think partly because the white paper favors judicial review which is where that would come into play. >> what evidence can be of any rules of evidence as to what evidence can be considered? >> there are certainly no legislatively imposed rules of evidence. >> can hear say be considered to ascertain whether or not these factors -- >> all i will say is there well may be into unclassified executive branch was that deal with this. certainly we don't know about any of them spent we are tied by the rules went on to go by again change everyday.

is there any prohibition against hearsay being considered? >> no. >> why is hearsay not considered admissible in a court of law? >> i think the short answer is it's generally believed to be inherently unreliable spent and that can be considered to put someone to death the best you can determine from the white paper? >> certainly there's nothing in the white paper that suggests that. >> judicial review we had certain situation we have a hostage situation, imminent, ongoing situation. is there any problem with a prospective judicial review, if feasible, if there is in fisa and post hoc if it's not feasible before and? >> i think there are two problems, one legal come one tactical. i do think you could solve the concerns that was raised in an emergency deception. i think that legal concern is there's an article iii question about whether there is adverse in a judicial proceeding. the reason why this isn't due to

an issue with fisa warrants like search warrants as i'll ever in my written testimony is because those are seen as ancillary to the subsequent criminal proceeding. in this context without any surgical proceeding i did have a very serious problem if the government had this ex parte application to judge with no one representing the other side either at that point or afterwards. practically congressman my concern is, you know, post ex ante review could turn into death warrants. were basically judges feel enormous pressure in these circumstances to sort defer to the government, especially without adverse counsel, adverse pars. whereas in the process of retrospective review judges have the hindsight. i think is both legal and practical problems that would arise than -- arise ex ante review.

>> how long are the people of the lists because we don't know. certainly as i think the last exchange suggested, it appears to be the case that mr. al-awlaki was targeted and on a list, could have been targeted for some extended period of time. >> so if you on the list for some extended bit of time, at some point during that time someone could've wandered over to an independent review. spin as you know, mr. al-awlaki's family could do was a lawsuit brought on behalf of mr. al-awlaki and the d.c. district court before the operation that ended up terminating his life. that suit was dismissed by a belief judge bates on procedure president wasn't -- so the was indeed an attempt to do exactly that. >> well, what recourse is there for someone who's on the list by mistake? >> you know, at least in al-awlaki's case, the

government, i do not service or to take this but the, suggested if you wanted to turn himself in they would oblige him. you know, so at least when it is both of the government believes it has the authority of kill a particular person presumably could seek to turn them thousand and contested but there is no procedure for that. >> is a drunken and the only method for telling? >> no. i think it's important to keep in mind this conversation is not about drones as such, that it's about use of any number of source of military hardware to conduct pashtun or the joint unmanned aerial vehicle, man, bomber, a tomahawk missile fired from a navy ship in the middle of a body -- i mean -- >> handguns speak with sure. it's not about drones for sale though i think the technological utility use of drones makes it easier and cheaper for the government to conduct these operations than conventional pre-existing technologies might. >> is there any rationale for allowing -- is it any rationale for killing them overseas?

what if they are found in the united states? what have been? >> according to the white paper one of the considerations is the feasibility or lack thereof of captured i do think the federal government will never take the position that it is infeasible to capture an individual who is with the territory of the united states. i still think they could probably come as a backup, i i think the government could claim the authority in exceptional circumstances to use lethal force against a u.s. citizen and u.s. law enforcement officers do it all the time but i think with regard to the white paper, that circumstance won't arise because you will never satisfy the in feasibility of the capture. but that doesn't the government wouldn't claim such force it in another context. >> the gentleman's time has expired. mr. franks. >> thank you, mr. chairman. thank you, gentlemen, for being here. i was struck by the chairmen of the committees juxtaposition between surveillance and the

drone strikes. and i have to go ahead and begin my comments by suggesting that as we look back, not such a long time ago when the administration eviscerated the bush administration for waterboarding certain individuals under circumstances that perhaps were at least as compelling as some of those that we are discussing today. and yet, the drone strikes are something that they can move forward to. and it just seems to me that there's more than a subtle difference between waterboarding and blowing someone into eternity. and the hypocrisy of the administration is profound, in my opinion, on this front. with that said, i come to expect and anticipate certain cognitive dissidents and certain

unwillingness for this administration to hold itself constrained to the proof. -- truth. so my thought today is for those of us that are committed to protecting the constitution and protecting the constitutional way of life for americans, that we have to then focused very narrowly on this phrase due process. and that that has to be our definitional task. certainly there are none of us i believe on this committee that would say that we just need to do away with due process when we are talking about american citizens. however, as the other gentleman mentioned earlier with police officers ethics of that nature, we have due process in this country. if there's an imminent threat and sometimes the degree to the imminence is taken into consideration, then the due process exists because of that conditionality. so what i would like to do, if i

could start with you, mr. bellinger, just simply see if we can find some consensus among the panel as to what critical elements should be in any congressional outline of due process, and whether that should be some significant punitive measures built into that kind of guideline to keep the administration within the track of what befits our constitutional premise. so, mr. bellinger? >> thank you, sir. and i can't resist, so i spent all eight years and the bush administration sometimes receding the criticisms against swings and arrows from people on the outside to address your point about hypocrisy. i've been supportive of the obama administration's counterterrorism policy, including the drone strikes. i would like to have seen some of them now that they are in office acknowledge that maybe

some of these issues that they claimed were making huge mistakes on before are actually more difficult than they acknowledge, and we see little of that acknowledgment. frankly, one of the reasons i'm here today as a republican official is to give the same kind of bipartisan support for this administration that i would've liked to have seen some of them when we were in office given to us on these difficult counterterrorism issues. that said, with respect to due process the question of due process i think does not mean judicial process. it can mean judicial process in some circumstances, but the constitution never said judicial process. it says you can't be deprived of life or liberty without due process. so what is the process that is due in a particular situation? in a situation where we have an armed conflict, i.e., a war, the process i think this congress can appropriately say is to say that an american can only be killed if it fits certain criteria, that it has to be a,

senior al qaeda leader who is planning attacks, and that those are imminent attacks, and that executive branch has to review this and reached high confidence that the person reaches those criteria, and where possible has notified congress in advance if that is possible and certainly afterwards have notified congress after the fact. so i think i would guess at minimum the panelists here was a weekend at minimum agree on those criteria if congress were going to legislate. and then the only add-on is there some judicial role or not. >> well, thank you, sir. and i appreciate your answers across the board. mr. vladeck, can i ask you to take a shot at a? >> sure. i think we have to be careful and perhaps i wasn't clear in my responses, that it's not the due process is bytes of a requirement of judicial process, it's no that the way to ensure t the government has provided the process that is due is not

simply to take the governments word for it. but is to provide some modicum of review, external review that whatever process was due under the circumstances was, in fact, provided. it was not just asserted it was provided. so to that end i think this court can look to the jurisprudence of the supreme court has articulated in cases with regard to what kind of due process is due an due process is due in american citizens and the one who takes up arms against the united states. i think there's a lot that we can learn from that example with regard to the balance that we should strike in the circumstances. and i think that if this committee is serious about codifying, there is plenty of precedent to base that on. >> would you suggest there might be any punitive elements in those guidelines for a government that fails to follow them? i mean, not just come in case across your sometimes his case collapses if he doesn't do miranda rights, but shouldn't there be something more punitive

anin a case that has such profod constitutional foundation? >> in my test when i suggested you can find a damages review. certainly they would come a point where a government officer might be breaking barriers criminal laws if they're acting with gross negligence and continue to cause harm what i the authority to use such force. mikey is that it would be a sufficiently significant step in this context to even provide and create civil liberties -- remedies. that by itself would have incredible effect on the governments -- going for the would run to the question of who would process that case but with the government really be interested in prosecuting its own officer and its own soldier for crossing the line in that case? >> we do that all the time. >> certainly it is true in a military. i think civil remedies might be sufficient for senior government officers. >> thank you. thank you, mr. chairman spent i thank the gentleman for his good

line of questioning, and the chairman now recognizes the gentleman from puerto rico, train 11, for five minutes spent thank you, chairman. i think that what is it. i couple of questions, based on your prior testimony and written submissions but i've noticed that some of you, not all, have asserted that the obama administration's, it is i should take in very limited authority with respect to american citizens. my first question for each of you than is, do you believe that the obama administration consistent with article ii of the constitution could have asserted a broader or far broader targeting authority? if the answer is yes, in what respects? basically i'm interested in understanding what the believe the administration has gone to the outer limits of its article ii powers, and if notcome in what specific ways it has not?

>> do you want -- >> each of you to comment on this. >> i think it's an excellent question. i think the administration probably has not gone to the outer bounds of what its constitutional powers would be. of course, none of us knows really what those bounds are. it's just not a clear answer to this question. the administration i think is taken a very respect david standard. the exchange with mr. battler ashley gave a good example. instancing the only americans that could be targeted would be those who are senior operational al qaeda leaders who pose an imminent threat, the administration could sit under the constitution any american who has taken up arms against the united states as part of an armed conflict could be targeted. you know, if this were a traditional war in world war ii and the were german-americans, we never would've said that the only german americans who have

taken up arms would be a person who was a senior leader who pose aan imminent threat at the tactictimefixed i think certaine president would have broad authority, and to the administration's credit they understand that this is a serious power they are serving to kill an american and they'vey have taken, in this case, a fairly limited lead. >> i agree with that as we'll. i would add that it's noticeable that the administration formulation and the white paper and in the attorney general's speech is al qaeda specific, doesn't have to be if we're talking about the duties and authorities the president to defend the nation institute is an imminent threat. if the threat came from a some other extreme is group or individual that happened not have a nexus with al qaeda, that power would still be there. >> i would just add to the commute frame your question in terms of article ii, but the administration could actually take a much more robust position under the aumf itself and that he would be suggested by the line of questioning that

congressman nadler asked before. the d.c. circuit has said in the haitis context that it is enough to justify targeting, to justify detention to be part of or substantially supporting any force. just focus on the part of component of that. to folly when questioned the administration could take the view that an american who is part of any force is lawfully targetable under the laws of war and under the aumf. it does not take that position. it hasn't forsworn that position to be clear. it said, what it has said is it's addressed a single, very specific case. which is the case of anwar al-awlaki who is found to be a senior al qaeda operational leader, whose capture was not possible, who pose an imminent threat, and whose targeting would be lawful under the laws of war.

and it asked a comprehensive question, which is is it lawful to target this guy. and have limited the answer to that question but i think rightfully and avidly by the way, they limited their energy to the question so as not to take on bigger questions and more difficult questions than they needed to in that moment. they limited the answer to that question to those three, which are really for, circumstances. that leaves a lot of ancillary questions, like what about the non-operational senior leader who poses an imminent threat? what about the operational senior leader who doesn't pose an imminent threat? what about the u.s. citizen footsoldier? all those questions are left open by that, and there is no claim of authority to target such people speak would the gentleman yield? >> yes spent without objection. spent i think you i thank the chairman. i just want to clarify since my comments have been quoted a number of times that i was not

suggesting that we ought, or the administration out to broaden its targeting criteria. i wasn't suggesting that none of us makes any sense until you have determined that some is an enemy combatant that seems to me that is the first question that must be determined with some sort of due process or neutral process. >> look, if i may come the are two baskets of questions here. one is the substantive criteria for targeting, and what is the procedural dimensions of how you determine whether somebody is in that substantive criteria or outside it. when you and i had the exchange earlier, you described a very broad criteria for targeting and suggested that your anxiety about u.s. targeting practices, these are the citizens, was on the procedural side, where the people were or were not in that

narrow basket. in that basket. my argument is that what the administered has done is actually exactly the opposite of that, which has defined a very narrow substantive basket and it has no known the procedural or at least no public procedural -- >> my point was however narrow or broad the basket -- i'm not suggesting broadening it, you have to answer that question first. are you an enemy combatant. >> at times be all of the members of the panel would agree. >> i thank the gentleman for the clarification. the gentleman from puerto rico. >> may i have just 30 seconds to confirm one fact sequence without objection the gentleman is recognized for 30 seconds spent thank you very much. it's based on comments before. so the obama administration's formulation requires that there be a link with al qaeda before you can do any targeting here,

is that correct? the way it is formulated right now, this policy requires a link to al qaeda, is that right? >> the policy i policy is formua way, it's careful to say that it is making a claim of authority to attack weather is that senior al qaeda link. but i don't think it's written in a way that is suggested they are denied of that authority otherwise. but they do build al qaeda or associated forces of al qaeda in of course the associated forces phrase raises the question, how broad is that? >> the gentleman's time has expired. but you're not recognizes the gentleman from texas, mr. pope, for five minutes. >> thank you, mr. chairman. thank you, gentlemen but i would like to get back to basics, and i know this may trouble mr. nadler, but i probably agree with them on much. i don't want to make you nervous, mr. nutter, but -- in the big scheme of things, when this all came to light, myself, mr. doughty from south carolina,

wrote a letter to eric holder back in december asking for specific constitutional authority and tracking it to the activities of drone strikes against americans overseas. we didn't get an answer. we have sent a letter subsequent to that when we got more information on federal aid. we still haven't received an answer from eric holder. as the chairman i has pointed ot there is no one from the justice department here. and their battery of lawyers, we haven't got one that will stand you or sit here and tell us the constitutional authority for killing americans overseas that this is going to but i would like to introduce both of these letters into the record, mr. chairman spent without objection, the the we made a paf the record. >> my background of being a judge, i believe in -- i get troubled by prosecution want to do judicial things and then not tell us how they come to certain conclusions.

i don't buy the argument is not enough time to get some judicial review. 20 years of experience, judges working with law enforcement can move pretty fast under all the serious examples that you talk about. i don't buy that we have to let prosecutors to judicial review. they work for the executive branch. that's just my constitutional perception on the whole issue. so i think the points are, as you have said, who fits this criteria? and who makes the determination that that person fits the criteria? senior level executive branch person yet to be named, like a draft choice, and that troubles me who that's going to be. who is that person? we don't know. it's just a senior level executive person you're i don't think that's the authority of the judiciary -- or the

executive branch but and then who makes that determination? and then that person is allowed to be on the kill list. congratulations by the way, two daughters. but let me ask you this. and you made the comment during her testimony that if there is a judicial review it needs, good idea maybe to review it when the person is put on the kill list. i'm troubled with the concept that they are put on the kill list, they are killed and then were supposed to have a review after that to see if it was lawful? i mean, that doesn't do the dead guy much when i find out groups, we made a mistake here. don't get me wrong, i don't like these people. i think they need -- long arm of the law, i to do with them, crimes against america. but i've asked you to weigh in on this to help us improve this system we are operating under.

because the as you pointed out you got to get judicial review to listen to a phone conversation with americans overseas but you don't need judicial review to kill them overseas. so do you think we need some kind of judicial review at the outset of putting this person on the kill this? >> i think it's a good idea and i think it can be done is done very carefully. and i think the key to doing it carefully so that it simultaneously addresses both the interests of the citizen and the comparative of the section of the country that rests on the shoulders of the present. we don't want judges into during an extremely time sensitive questions about should we pull the trigger right now, there's only this much time to do it. but that's not actually prevented by the specifically identified kill list scenarios. as we know, and the al-awlaki case illustrates there's a considerable period of time and there's a distinction between deciding is the person in the

attack of a category in general, and whether or not something to get to attack should be carried out. and there's a role for the judiciary if congress wants to establish a. i think they probably should. as to the early stage determination which isn't time sensitive determination in the same way. >> we've been talking about one individual. what if the individual is not in one of the countries that we all suspect where al qaeda is? now they are everywhere. what if the individual is in one of our allied countries? what if there in france? what if there in mexico? what if they are in canada? does the discretion with the white house, who averages, to get the person on the kill list of all this in the end of in france and we can go after them? >> i think there's a different set of rules accountable in that scenario. it connects with the admissions rationale. they emphasize capture feasible but you can summon in france, the united states, mexico, england, india these places, capture is almost certainly

going to be feasible. that alone may address it spent i know my time is limited to, in fact, i'm proud but i would just like to ask though, is that discretionary with the executive branch? is that policy or is that britain law? >> i don't think -- the whole problem here with uncertainty as we don't have clear written law, right? it's uncertain. that said, i do think the feasibility test they will be obligated by the pseudonym and the fourth amendment spent may i just add something to that? >> very briefly spent i do think when you're talking about potential legal force operations in allied countries are countries other than pakistan, yemen, mali, you are talking about a situation where the other, other legal constraints on u.s. action, particularly sovereignty, come into play. and one of the things that

causes those environments that we operate in to be relatively permissive is either consent of the governments in question to do those operations, which presumably canada and france are not going to give, or, and this connects to what the point professor chesney the same, a funny that they are either unable or unwilling to manage the threat that the individual poses, which their law enforcement capacity would make very difficult to make. >> thank you, mr. chairman. >> if the gentleman will yield, i will issue an additional 30 seconds to make the point we don't want to put our selves in a position with this analogy drawn by mr. wittes that we will allow foreign governments -- as opposed our own government protecting those rights. >> thank you, mr. chairman. spent i would not be pleased to yield to mr. lofgren. >> thank you, mr. chairman. i have a few quick questions. i am, i would just be frank,

troubled that the memorandum that allegedly provides the legal basis for this have not been shed. and i'm just wondering, maybe you can't come any become answer it, but if you can't i would be interested, what conceivable reason that there would be for the obama administration to not share these memos? and what the consequences are for not sharing these memos. anybody who can answer that i would like to hear it. >> actually it may surprise you as republican official, but i will actually take a stand at definitive administration on this having spent four years as a white house lawyer. this is the private legal advice that was given to the president of the united states, and just the way this committee is allowed to rely on advice and the president could not say we want to see the advice that he is given to you to see what

advice you are getting. .. those of us that were here if there was only one novo in the house it says the president is authorized to use appropriate forces against the organizations or persons he determines plan or authorized committee that are

aided in terrorist attacks. now, are we to believe that everybody on this list was responsible for the 9/11@? is that the rationale? >> all four of us agree with you that but 2001, which is only about 60 words long i was involved and i have an envelope in that world trade center still smoldering. it was very long in the tooth. the good government solution, while extremely difficult and controversial would be for congress to work together with the executive branch to revise that aumf. it's clear about who it covers and where it covers. >> if i may, i think it isn't as clear as you suggest. this was a limitation and if there were big arguments about it, as i am sure you are aware there was a prior draft that was

much more expansive and was narrowed so that we could get bipartisan consensus, and was narrowed for an important reason. now i guess yes, the executive has the ability to keep the legal advice confidential as a longstanding principle, but since it looks like at least questions are raised as to whether the executive is complying with the law that if he feels he is, i think it would be a very positive thing for the administration to share that legal pherae with this committee and with the american people who i think have doubts that are substantial and if i could be cleared up, but would be a good government response it seems to me and if it can't be, then we have another serious type of problem we have to deal with.

>> i agree about 99% of the way to the extent the administration's legal theory remains unclear to congress, anybody in congress i think administration officials should be up here to explain it either publicly or privately to put down in writing what they can. the questions you raise our fair. is it clear that 4,000 people that were dead that every single one of those fell within the aumf or did the president in some cases rely on his constitutional power? these are legitimate questions. the only thing i would say is the president of the united states is allowed to receive a particular memo on a particular day and rely on that. >> i would say i was not a huge fan of the bush administration has i think many of my colleagues know but we actually did get access, the committee did get access to the memorandum

laying out the rationale. i thought it was poorly written and is advised that at least we were provided with the analysis they were attempting to rely on and i would expect no less from the current president. i yield back. >> the chair recognizes the gentleman from south carolina for five minutes. >> thank you mr. chair. in a brief but inspiring piece of bipartisanship, i want to express along with my colleagues my frustration at the doj's absence. some of my colleagues know i have plenty of friends that remain and i respect their work. i understand not responding to a letter from someone from south carolina. i don't really ever understand what responding to the judge poe's letter and not respecting this committee enough not to send someone. because if they were here, and

don't misunderstand me i appreciate your presence and i'm grateful that you came but my questions were going to be directed to them for this reason. i don't need a doj memo to tell me that you can use lethal force to repair an eminent threat. i didn't need them to tell me that. police officers should folks all the time, private citizens should folks that are invading the homes of the time in fact non-citizens can shoot a united states citizen without having to go to a judge before hand. now there is review afterward, both criminal and civil, but i didn't need the department of justice, mr. chairman, to tell me that. i also did not need the department of justice in a memo to explain to me that in times of war you don't need a judge picking your targets for you and in a time of war you can't have

a judge weighing and balancing with their there is too much collateral damage in this building were this village. but i really want to ask the department of justice is this, there are two references in this memo. were the target of a lethal operation a u.s. citizen who may have rights under the due process clause in the fourth amendment. that is on page two. and then on page five, department assumes the rights afforded by the fifth amendment's due process clause as well as the fourth amendment attached to a u.s. citizen even while he is abroad. so, if the fifth amendment attaches and the fourth amendment attaches, does a u.s. citizen traveling abroad enjoy the full panoply of constitutional protections? and if not, why not?

>> whichever i would pick the one that gave me a data grade and common-law but he's not here to get [laughter] >> i think i can take a crack at that. here's what i want is the eighth amendment apply? i think the background behind which the memo that this white paper is based on is critical to this class. i just -- and i appreciate that. i just want to know does a u.s. citizen enjoy the full panoply of constitutional protections when they are traveling abroad? because this memo said they may or were assuming. does the fourth amendment apply? >> i will let in actual professor of constitutional -- >> i don't care. anybody that knows. do i have to abide by miranda? >> the court said the fourth

amendment did not apply abroad and there are -- to non-citizens. >> i'm not talking about non-citizens, i'm talking about the citizens abroad. do they or do they not? >> so the eighth amendment applies? and the sixth amendment applies? >> the courts have said that in that context the rights may vary in their scope. >> this is where i am headed. how is the analysis different if it is a u.s. citizen that meets the department's criteria in charleston's of carolina instead of somewhere else. so if you have the same panoply of constitutional protections overseas owls here can you use the imminent threat argument to take out an american citizen on american soil and if not, why not? >> this goes back to the point we were discussing before which is the relevance of the feasibility captured piece of this. >> that's the only thing we get to hang our hat on is the

feasibility from a senior level doj officials who decides whether or not it is feasible or not to capture me. >> i think the feasibility should be reviewed after the fact. >> that is of little consolation if you are dead. is there criminal review? >> if the government wants to invite one of its officers for violating a criminal statute, certainly. >> you think this memo would allow -- who would do it because i would be the executive branch, right? we haven't had much success getting the executive branch to enforce the law against itself. in the two years i've been here -- >> there is precedent if this congress wants to revisit the independent counsel statute i think we could have an interesting hearing on that as well. >> i would love at some point for the department of justice if we are not taking too much of their time to come and explain

to us whether this analysis is equally applicable to the american citizens on american soil because the feasibility of capture is little consolation to me if that is the only thing protecting us from this operation. >> i thank you the gentleman coming and i would note that the issue was extended and will stand open. the chair recognizes the gentleman from florida, mr. deutch. >> thank you, mr. chairman. you said your testimony and an exchange with mr. nadler, you spoke about the need to have international rules. mr. nadler raised the question of what would happen if the action were taken by the of their country's. and i had to excuse myself to attend another meeting. if you a elaborated, this conversation that we are having about the constitutional

protections and how this program against al qaeda sanctions under our constitution is obviously of the greatest importance to this committee. but the issue that you raised is a good one. what are the international rules, who sets them and what standards would be in place. islamic let me let you elaborate a bit and then i will ask the question. >> i am delighted that you asked that question. the judiciary committee is concerned about the protection of americans in this hearing. but as it has been diluted to cut 3,000 to 4,000 people who are dead or not americans and so in those cases they don't have constitutional rights. the rules that would apply to them with the international law and both the bush and obama administration has tried hard to clarify that they are complying with international law. they are not using force in

another country in violation of international law and they are not killing people and assassinations or murders. that said, no other country in the world has come out publicly and said that they actually agree with our position. that is a very unsteady place for the united states. i was the general counsel of the state department. i wanted the united states to appear around the world to be acting in accordance with international law, he added the obama administration has asserted this and i believe that they are but we are in a position most other countries don't of erie with this and are beginning to reduce the violations of the international law at the united states needs to work harder to clarify those rules. >> what are the violations? who is making those accusations and what are they accusing us of? >> other countries have begun to raise concerns. there are lawsuits back of both in pakistan and the u.k. and against the british foreign secretary suggesting that this

hearing of intelligence information by the british government with the american government may actually constitute war crime speaking british intelligence officials nervous. that's being closely watched throughout europe. >> in order to address these issues going forward, both because of potential actions that other nations may take the would put as you described earlier would put on the state department and the most difficult situation to have to deploy those while standing up for the program that we utilize what are the standards that would be put in place and tell me what that regime looks like and where does it come from? >> these are great questions. i spent four years as the legal adviser and thousands of conversations with european allies. some of them were actually in

this room today. representatives of different emphases listening to the bush administration tried to explain what it was doing which appeared to be in proper was actually lawful and the obama administration which never expected to be in the same position of helping allies around the world of accusing it of illegal activity frankly needs to go to the same effort now and the rules would essentially be to say it's not to start with the treaty. this is difficult to deutsch and deily to negotiate the treaty but to agree on basically the legal principles such as a country can use lethal force against a terrorist in another country who is threatening an attack if that country is unwilling or is unable to prevent that threat. in most cases are of the world 190 countries, those are able to prevent that threat. they can arrest the person but in four or five countries,

yemen, somalia, pakistan we want to get countries around the world to acknowledge the united states or any country under the international law that use force to kill someone in another country who is posing a threat where it can't be addressed in another way. i think we can get there but it certainly makes other countries on comfortable and they are just not going to agree to our position unless we go out for some aggressive international legal diplomacy's. it's a great line of questions. >> and the likely position that someone could take a good point to this hearing and the debate in this country? you are having a hard enough time coming to terms with this idea at the very early stages of the potential that the drones would offer. you have a hard enough time coming to terms with this under your own constitution, and now

we are going to have a broad discussion internationally? you are going to suggest to us what we should and shouldn't do? i'm just not sure that we are quite at that point where that conversation can take place. >> it's very difficult. the bush administration spent a lot of time trying to explain to people why it was lawful to detain people without trying them. most other countries in the world as a weed a minute, you can't hold someone without trying them. that is a basic element of due process. this is actually much more aggressive. the obama administration is and just detaining them, so we need to work hard to explain as a country that is committed to the rules law why what we are doing is legal. it's important to have this hearing here but we need to go round the world and explain why it's legal under the international rules. >> thank you comer gentlemen, good questions and the time is

expired. the gentleman from florida is recognized for five minutes. >> think you all for your testimony. i guess i disagree a little bit with the characterization that this is limited in the sense that the analysis in the sense that they say all we are saying is the grounds on this instance but they don't say that they can't go beyond that and they don't say that there is going to be more restrictions otherwise. do you all agree with the fact that they based their analysis not simply on the aumf but that there is an article authority that if you have at present it was of the ability to engage the leaders overseas? >> i think the administration would always take the position that this has the authority under article 51 an article to to defend the country against an eminent threat and that leaves open the question of what the substantive content of eminent threat is that to the extent that tomorrow presents an

eminent threat of it is totally outside the administration would certainly assert the authority but as a matter of article 51 and at a domestic level under article 2 to counter that with lethal force. >> and perhaps even if it was a threat to the example of libya, there was no congressional authorization for us to go and get engaged in libya. someone that i think it is important because i think that activates the president's war power and when you are dealing with these issues you are going to treat it in the civil content or the lobby of war content the fact that this congress has authorized that means a lot and so i guess the logic of this analysis of the only applies to senior al qaeda leaders there is nothing preventing the administration from applying this and other contexts. you do have to make analyses that can apply to different factors and so i guess my question we can just start with mr. bollinger, there was a international coalition to read

my question is if there was an american citizen who is a troubled to the algeria, joined the pro gadhaffi army and was a leader in bringing arms until a deal that would fight not only the resistance, but american forces and our allies based on how you read the memo, do you think that they would have been justified or do you think that this provides justification to engage an american citizen in that instance? >> the answer is probably not because under your fact the senior operational al qaeda leader was posing an eminent threat of violence to the united states. >> but my question is limited to that the logic of what they are saying why is it so important if it isn't critical someone that is fighting is there a logical distinction between the two if you don't think that it's critical? >> this administration has said

that they are relying only on the aumf and we wonder what can possibly be that all of us that support a lot of different countries around the world against people that may have only been 10-years-old in 2001 still falls so this is a good set of questions as to whether the said ministration would rely on the president's unconstitutional authority to strike somebody who didn't fall. >> in addition to the authority of rising from the use of force against al qaeda and the associated force and other principles of international law including the president's constitutional responsibility to protect the nation and is a self-defense iran is the agree with that is an eminent threat. in the situation like libya where it is very much intervention of choice probably didn't propose an eminent threat to the united states.

how did this kind of free-market one in that instance? >> even then i think the question muddies suppose that we had a regimen that fighters at the air force base in libya. but presumably if a citizen that goes to algeria to take up arms on behalf of the forces is that involved in an attack on the u.s. military forces shall scott flipse your involvement station then i think that would involve -- >> i agree with that but not necessarily on an attack. somebody that's across the border in algeria and may be doing logistics'. estimate that think it is irrelevant at that point whether in fact what was true in libya was a conflict the would justify the assertion of the military force because i think that you'd have both domestic problems in so far as it is outside of the scope of the aumf and very serious international problems of it wasn't part of a larger armed conflict. >> may i add something to that.

i think one of the oddities of the white paper, and i would actually think it is a criteria for this committee to follow-up with the administration about is exactly what work the eminent is doing. it isn't clear to me from reading the paper whether the word eminent is an attempt to get over the domestic constitutional hurdles with it comes from the resort to force questions and the international law we were referring to or whether it is against a sort of affirmative defense in domestic criminal prohibitions' overseas or whether it flows from another need. it's simply there as a self-imposed constraints and i think some of the questions that you are asking the answers would be different depending on what word for word eminent is doing, and i sort of talk about this a

little bit in my written statement, but i think it is an area that is worth this committee pushing the administration for some clarification. >> thank you mr. chairman. >> the chair recognizes the gentleman from texas for five minutes. >> thank you mr. chairman. this is exceedingly important. we do appreciate you being here today. obviously the justice department folks are busy doing something more important than having oversight. i wish that it they didn't need. these issues are deeply troubling and i, like my friend, judge poe a big believer in due process. but talking about eminent attacks is one of the issues and

we have a lot of people that have brought up the issue of being killed in yemen but i think it's good to look at what if scenarios before those scenarios actually happen. we know that al-aulaqi had let the players for the muslim congressional staffers here on capitol hill. we know he probably wasn't done in the united states. can you foresee a time when someone like al-aulaqi is on the hit list finishes what he was giving in yemen and somehow gets back into the united states if there is concern of an imminent attack while he was in yemen could there be the same concerns

when what did then be possible for someone on the hit list as al-aulaqi was to be hit in the united states proper? >> so the al-aulaqi case would be someday the subject of a truly wonderful book. it's a very complicated and interesting history. i think that if al-awlaki had made it back into the united states i don't think there is dispute among anybody that i've ever spoken to the proper way to handle him would have been for the fbi to arrest him and for him to be prosecuted in a u.s. federal court. >> my question wasn't about what was proper. my question is about the possibility of someone on the hit list been found back in the united states. moodie was arrested in 2002 at the international airport.

he was arrested as you talk about, but he had been very close to the clinton administration and had worked with the bush administration and yet we find out actually she was involved in supporting terrorism internationally and so he gets arrested and now he's doing 23 years in prison. i am asking what could be the prospect that somebody gets back in the country and from a political standpoint, the rest could potentially, like al-aulaqi if he started talking about the people he worked with on capitol hill, the people he had met with and worked with it obviously would be very politically embarrassing. what if you had alphabetically someone that has been working closely with the president? we know he had a member of a known terrorist organization meeting in the white house last year even though secretary napolitano, sitting where you

are, couldn't answer that she even knew that was happening when i was in the papers by the time she gets over to the senate she then says we checked and he was elected three times. there are things that could end up hypothetically proving so embarrassing that if somebody gets back in the united states, someone might look for a way to see that they never testify. we are talking hypothetically, but i am wanting to know what are the possibilities that something like that could happen? so that's my question. >> there is nothing in the administration white paper in the attorney general's speech i would suggest that would be lawfully and i would hope that in the administration, republican or democrat faces such a situation would be hit like patriots and will proceed according to law and of the constitution. and i would hope that this committee in the event that that would not happen would consider it under its impeachment power.

>> when no one from the justice department cares to participate, then what? we find them in contempt and then goes to the u.s. attorney and nothing happens as it just happened last year? any of the comments from anybody else? this is an issue because knott everybody into the political pressure acts like patriots. >> it is clear to me be unconstitutional force against a person in that scenario is precisely because it would be feasible. he may still be part of an organization and the senior leader what have you. >> it is imminent attack and we helped set the situation up in yemen and we need to take him out. >> the time has expired. >> i think the gentleman and recognize the gentleman from florida for five minutes.

>> what steps could the executive branch take to allow the appropriate congressional oversight and informed public debate and that i would leave to all of you to an estimate that think the administration needs to be more open and their legal analysis. i think it's disappointing they didn't send a witness and we are happy to be the second stream to try to help you out, but i as the former government official think that it does -- it is incumbent on this administration to put witnesses forward to explain and answer your questions about would be the same number one. second, the executive branch could work with congress to craft the law that would specify the circumstances in which an american can be targeted and the notice process to congress.

so i think there would be the main thing that the executive branch could do is to work with congress on the narrow legislation that does not tie the hands of the president. i will go back on the judicial review point but in all of these cases we are talking about an armed conflict and the gentleman from texas and south carolina is no longer here, but we are talking about a situation where the president is dealing with a war with an armed conflict and it's really inappropriate to insert judicial review to tie the president's hands where no one would ever have suggested that before the president could order an attack against a german-american who was a high-level german leader that would have to go to a judge beforehand or after hand to allow that german americans family to come and have a judge perhaps by the president's hand. >> active participation and

oversight efforts by this is critical and i would echo what has already been said on that point. >> how much consensus we have on the substantive issues driving all of this? i think it's very clear that we have consensus that would be useful for congress to express if it was willing to do so with a targeting american not to be and if there is an issue in the eminem standard or the feasibility standard this can be addressed. we don't have consensus as to what extent their traditional role easier necessary or permissible and i am probably the one that is most in favor of the most permissable role and most in favor other than that we have an array of views. stat i think one thing the administration could do is to talk more and more about what the internal procedures it is

using and looks like. so, starting with the president's speech at the national archives in 2009 and continuing through the speech in the following year and a series of speeches over the next three years the administration talked a lot about the underlying legal regime, not at the level of granularity that a lot of people want and i certainly would encourage them to be more granular on that score. but to me the biggest hole is actually not a legal whole it is a procedural whole and if it goes to the question that the congressman nadler and i were talking about before, not the substantive contant if you can target the have been clear about that. it is what do you have to go through before you conclude that somebody is in that basket and on this question, they said very little except to say repeatedly

that there are rigorous internal checks. but i would like to see them talk more about what those internal systems look like. almost everything we know about it is a result of cross coverage and it's time for them to have something substantial to say on the subject. estimate i don't have much to add other than the most interesting omission from the white paper is what he was suggesting. the lack of any sort of explanation on the procedural process if there are reasons why the specifics tax in the intelligence that led us to discover those facts should be classified that is one thing. they don't know why the bureaucratic process is undertaken by the exit of branch in a hypothetical case as a matter of national security. >> i think that you can imagine the problem is we argue about everything here so the idea that we would put some sort of

process forward i fully understand your point and i appreciate and i think it's necessary but the idea that process would be put forward to then be analyzed in a vacuum without the circumstances i think is something that would be a debate and stand you are wanting at but understand of the present climate it's almost impossible. >> there is a lot of merit to that and there's an additional factor that isn't about this body but it's about the litigation and the environment that the administration is in command one of the problems in the bureaucracy people are constantly worried about is the incremental effect on the litigation that every disclosure has and i think every time that you consider saying this you know that you're going to get a

briefing filed in the next day that said you have now confirmed, and i think somehow we need to figure out whether there is some kind of safe harbor that we can create that doesn't actively discourage the administration and from making disclosures particularly to this body. >> maybe that is what we should be working towards. i've listened to the johnson takes towards the end of the war he got into this crazy habit of sitting with his cabinet deciding where the bombs were going to land when you are engaged in the war and i am sure i don't have to make that point to all of you but likewise you know the same take have any angeles are on the pennant. i wonder if the president would

engage in what we are doing is opening up an argument for my friends on the right which would be to say look at all of the due process and a flight from our side would say that is not enough due process, and then of course the whole point is missed which is these are enemies of our country and we hope that when some from this side or the other side that they use discretion of their office which tends to be pretty broad with all of the merit that we would expect someone that serves in that role thank you for your talk and fighting for these issues. >> mr. chairman i yield back the balance of my time. thank you. >> of the chair recognizes the gentleman from georgia for five

minutes. >> if we come to this time frame i think what is interesting is i agree with my general we do argue sometimes about things come angels on the top of the pin head but we can argue about anything because justice chose not to show what, they came and had an opportunity and instead of engaging in a transparent within the confines they chose to take a pass. they chose not to come again. it is interesting in your comments earlier being in the bush administration over to the obama administration it is amazing to me as my grandmother used to tell me don't criticize somebody you might be in their position one day they are in that position and i think what has been said here on several occasions really highlights not i believe they do not want the eminent threat but at that point and they have to define what is an eminent and when are they going to be applied and what area are they going to be applied? we do not want a feasibility of

capture. i would tend to disagree although the panel said if they were in the united states that they could always fall back on feasibility and there would exempt them i'm not sure that is actually true, not in our society today. >> as we look at this site you have the distinct concern what is and how long will this paper depend on the whole determination to a sort of short answer here how long can this administration not even follow an administration keep this argument? how long is this going to allow especially when we shut down the war in iraq and we are getting ready to move out of afghanistan and somebody the served in iraq and in this area i have another question how can they continue to depend on this? >> a couple years ago my colleague wrote an article in the post warning that it is growing stale. more recently, the professor

jack goldsmith and matt just this week published a paper arguing that the growing threat is making it more of more imperative to conagra's to look at this more seriously. >> the determination to be whether the for the action is taken under the process and the judicial review if there is one of those rich have a question about which i will get to in just a second. i think the issue that comes to my mind is we don't have this review right now. there is the veil of secrecy if you and in this administration there is no one denying the article to privilege. there was no one denying the devotee there. we are having a real issue here and we have the secrecy going on. explain at least in the sense when we are dealing with american lives overseas and you have a process that you say you have a process on that is like me going to my 14 year old and saying what is your decision

making process? no problem i have a process. just trust me. this isn't one that we can take. i do have a question that if we do it after the fact that to me is damage that never makes you hole completely. but my question is coming and you brought this up recently we wouldn't invite one of our own and my colleague from south carolina made this comment we are not going to invite one of our own it but let's play this out for a second. if we did decide who was at fault, my question for you is who would be at fault when we have seen many times below last person on the bus, the drone operator where would you stop in the call devotee and stop the president. >> it depends on the decision making process that would not exist. i doubt it is not existed but we are not privy to it and so i

think it is very much going to depend on who actually was the one who made the decision that had the legal error, who was the one that set in fact even though this guy was at the house that is enough to decide who's a senior operational leader of al qaeda, i think from would be the congress could write a statute where the damage peace wouldn't depend on who was actually at fault. the purpose of the act is to say that when a federal officer is an employment it's the federal government at fault for a large we aren't point to one guy that is doing his job. >> but we also know how that plays out and what will play out in the administration policy. and frankly both -- this is a concerning part, mr. chairman, if we come to naught least my understanding here is again, i want state this again, as has been said many times before but i think it is the administration today had a chance to do with the president has said over all

that he wants to have an open administration of which reflects the priorities of his administration. this is not happening. they took the forfeit today. when they could have easily came and if they said no i can't talk about that, we can talk about this and get with this committee on a classified level. there are ways to do this. but simply ignoring the setting committee and saying we have other things in john to do a, maybe there's other issues more pressing but i think the american people when they see this this is a pressing issue and give a statement it says it's the highlight because we know we have one instance. do we really know we have one instance? because we have not been able to see. that is the concern that i have. this is why this is important in this is why the committee needs to have the oversight and needs to have the administration actually show up to the game.

>> a thank you of the gentleman and all the members of the panel for very good exposition of the issues involved here. i along with the gentleman from georgia and from new york and others are very troubled by the fact that we haven't had cooperation from the administration in terms of producing important documents we need to review to conduct a war oversight properly or a witness on behalf of the administration to testify to this. so we will continue to work together in a bipartisan fashion to conduct the oversight necessary to take the next steps that may be necessary. but in the meantime, we probably will have additional questions for each and every one of you and so in a moment i will ask for unanimous consent to allow members to submit written questions to you and we would hope that he would issue those

as promptly as you can. this concludes today's hearing and without objection all members will have five legislative days to submit additional questions for the witnesses or additional materials for the record, and the hearing is adjourned. here is a live look at the white house where right now president obama is meeting with house speaker john boehner in the minority leader nancy pelosi along with senate leaders harry reid and mitch mcconnell. they are talking about a deal on those automatic spending cuts that go into effect today. the meeting got under way after ten eastern. we will watch for any news coming out of the meeting and bring live coverage on c-span as any remarks from the president or congressional leaders. we are also planning to bring live coverage of today's white house briefing with jay carney and expect to hear more details on the sequester negotiations. this afternoon the supreme court

releases audio of the oral arguments in wednesday's case

imagined that we are involved in a group of 20-years-old and i am launching an number of organizations that are going to try to save indonesia but is in danger of extinction. raise your hands those of you the would like to help me helping that butterfly and you'd find that among the 20-year-old son on all of this, you would find people are interested in doing that which is great. then go and ask the same group who wants to join me in a political party to and who wants to join the republican party or the democratic party and you will see that fewer would be willing to volunteer on the air force and joining the political part and that's very bad. i think political parties need

to modernize and need to become more attractive to young people come to young professionals because the political parties are the essence, the idea that you can have democracy without strong political party. yesterday the acting deputy administrator of the center for medicare and medicaid said his agency is making progress and implementing changes to the nation's health care delivery system under the affordable care act. jonathan blum testified before the senate finance committee about modernization efforts and medicare and medicaid. this hearing is one hour and 20 minutes.

>> stat president abraham lincoln once said the best way to predict the future is to create a. in 2009 we didn't like the future that we saw for the health care system based on a fee-for-service payment model, doctors and hospitals are getting paid for the amount of care delivered instead of how well they delivered the care to patients. so the affordable care act we created new and better ways to deliver health care, save taxpayers' dollars and improve patient care. medicare and medicaid and partnership in the private

sector are now working to create the road map for the future of the future health care delivery and we are here today to make sure they are on the right track. there is a slowdown in the health care spending where we need to do more and to do it faster to change the way that medicare and medicaid pay for health care. we held how to boost the country's economy outlook and ran for leading economist to douglas whole -- holtz is to end the fee-for-service. everyone agrees that fee-for-service drives volume, excess and waste. we know this way of paying for health care encroaches the wrong things. that is why health care reform changed the incentives of providers and medicare and medicaid are testing different programs to determine which work best. in october medicare will not a program for the simple yet revolutionary premise medicare is going to pay hospitals to get

the job done right the first time. hospitals are penalized if patients are readmitted to soon after being discharged. communities from montana to maryland are rising to the challenge. in missoula montana of the service agencies are preparing with medicare on the transitions. under this program, the patients at high risk of readmissions to one of the two local hospitals and muzzle will get extra help making the transition from the hospital back to the community. today we will hear about new data showing the first step in ending the curve on medicare hospital readmissions. the rate for medicare patients return to the hospital for treatment has fallen by more than a full percent over the past several months after being firmly stuck for years or decades. medicare and medicaid also implemented a new program in october that pays hospitals more for delivering better care and penalizes them financially for

poor outcomes. for those outside of health care, this idea will not sound revolutionary. it makes sense when you take a car to the repair shop to the brakes fixed and they break the windshield, you shouldn't have to pay for the broken windshield starting in october, hospitals can be penalized if we go in with a heart attack and the hospital is responsible for giving you a surgical infection. hospitals can be rewarded for good customer service. that means doctors and nurses share information and experts medications and develop a plan of coordinated care. we need to get more value out of each taxpayer dollars spent. we also need to help providers work better together and coordinate care. medicare and medicaid need to reimburse hospitals, doctors, nursing homes to keep the patient healthy and the account will care organizations are starting to make this happen.

medicare almost 300 care organizations including in billings montana teamed up to serve more than 4 million beneficiaries. in these organizations, doctors, hospitals and other providers work together to give patients coordinated care. the providers and talking to each other a priority. and they work to ensure patients get the right care and the right time. medicaid has also come to the table to provide new solutions to the cost challenges facing the states. medicaid beneficiaries in minnesota are among the first to purchase a paid in the new integrated care models that would link the patient outcomes and experienced payments. providers will be held accountable by sharing in the savings and losses as well as the total cost of care. my state of montana started a program to lower diabetes in its medicare population. the goal was to help the participants lose weight and keep it off which makes them

healthier and reduces costs in the medicaid program. we need medicare and medicaid to support these efforts and offer flexibility to test the idea. i look forward to examine the progress that medicaid and medicare have learned with what is work and finding out what we can do more. let's listen to president clinton and ask that we are in charge of creating the future. let us do more to lower cost and quality with a medicare and dedicate and create the future of health care delivery. >> last week "time" magazine ran a thought-provoking article that was along this article in the publications history. it was an exploration of a holocaust of medical care in this country and what the costs need for patience to read it was a fascinating article and it got me thinking over the last five years we spent a lot of time

here in congress talking about health care. obamacare was signed into law nearly three years ago to make health care more affordable for patience and consumers. now, the so-called affordable care act did a lot of things, but as far as i can tell it has done little to address the biggest health-related concerns people have come at the actual cost of care. i hope that at some point we can take a serious look at the drivers of health care cost in the u.s.. i think would be worth the committee's time to do so. today, however we are here for a different reason we heard from providers and third-party players in the private sector who've come together to do some interesting things to try to improve care while reducing cost. i believe the private sector can and will make great strides in this area we cannot forget that medicare is the nation's largest health care payers.

if we reduce innovation it must include medicare. now, i've been very clear about my opposition to the obamacare. my concerns about the adverse impact of the law and premiums and the national health spending continue to grow with every passing day. however, the chairman and i agree that health care providers and the payers of all shapes and sizes need to work together to provide patients with higher quality, better coordinated care. according to the medicare payment advisory committee, the most recent report in 2010, individuals, government and businesses have done a total of $2.6 trillion on health care. today about 45% of all health care spending comes from the government. and in 2014, when the medicaid expansions began, that would rise to 50% to read the congressional budget office projects that by 20201, just eight years from now, spending

on medicare and medicaid would grow to $1.6 trillion. by virtue of its sheer size, medicare has an important influence on the overall health care delivery in the country. and clearly the right policies in place, medicare can be a driver of change. now, that being said, i also question whether the program can be as nimble as the private sector in making system improvements. mr. blum, i hope that he will be able to reassure us that it can be right at a rapid aging of our population we have to contend with increasing numbers of patients with chronic diseases such as diabetes or heart disease. these patients are sicker and more expensive to treat. while providers are doing their best to manage these patients, often times our health care system is structured to allow the care to be easily coordinated. currently we have a system of

isolated silos. patients receive care in a variety of settings, doctors' offices, hospitals, nursing homes etc., and it isn't uncommon for health care providers to have an incomplete picture of the patient's overall care. in addition, the provider incentives created by the malpractice treated by injured in stress mechanisms are not well aligned to the proper focus on the better results and lower cost. we can certainly continue to take around the edges of delivering care in new ways to providers continue to tell me that their lawsuits drive the volume of services and of course the fee-for-service system provides little financial incentive to manage care properly as a former medical defense lawyer i have to say that it was bad back then, more than 37 years ago, and it is

even worse today to get when talking about the delivery system reform, our goal should be to ensure that patients receive the right care in the right place at the right time. it's an appropriate role for the private payers and the federal government to put pressure on the providers to reduce the cost and provide better care and better health outcomes. i know that rome wasn't built in the day and big changes take time, but we have to move beyond simply reporting what providers are doing to holding them more accountable for health care outcomes. in my own home state of utah we are privileged to have some of the best and most sufficient health care providers in the country. but not all providers are created equal. much of the health care system is fragmented and often their right hand has to know what the left hand is doing. unfortunately, the patient is caught in the middle with very little coordinated care. i am anxious to hear from you, mr. blum, about any real progress that cms has made

towards care coordination. we know the errors and costs can be avoided when providers focus on the transitions. lately there's been a lot of attention paid to the florida effect to be coming from the centers for medicare and medicaid innovations come also known as cmmr it has an enormous budget and very little accountability. i am hopeful that we will hold another hearing this spring that focuses exclusively on cmmi and the results of the $10 billion of taxpayer money that was given to them to advance the cost of higher quality, lower cost and more efficient care. so, senator, thank you for convening the hearing today and i look forward to hearing from mr. blum. i'm hopeful he will have good news to share on the progress cms is making to help and down the cost curve. >> thank you, senator. i would tell some of my colleagues and friends here that

mr. blum is no stranger to the finance committee. he was on my staff awhile and also the principal advisor at the witness table not long ago. .. and transform the delivery of care. in the three years since passage

of the affordable care act, i'm pleased to report on our progress. we have put in place many new programs and policies following the goals of the health reform law. for the first time we can say we are paying for value, not simply the volume of care, quality is improving, and costs are growing more slowly. simply put, medicare's cost curve has been dented downward. over the last three years, cms has one, put in place new payment mechanisms reward hospitals for the overall quality of care. cms has finalize regulations to define what it means to provide accountable care, the aco relations. we have transformed our physician payment system to shift its emphasis toward primary care services and care accord nation. we have established a new center for innovation, which is currently testing more than 35 new programs and is working with over 50,000 health care

providers, and over 3700 hospitals. we have shifted the business model for private plans competing in medicare. before the affordable care act, plans competed on low premiums and extra benefits. today, they compete on low premium, extra benefits and the quality of care they provide their members. cms has transferred -- transform our framework to respond to fraud and abuse. to stop fraud before it happens rather than chasing down providers for payments after they occur. cms has overhauled the payment model for durable medical supplies and home health care, dramatically lowering spending without compromising quality or care. over the next several months cms will focus on several new areas. we are working with hundreds of hospitals and health care providers to test how to bundle fee-for-service payment together in new ways to figure out the best way to pay for a total episode of care.

we will continue to work to implement the value modifier policy to continue to shift our position -- physician payment system to report physicians and providers. we will continue to partner with states to test ways to best provide and coordinate care, including the vulnerable populations such as the dual eligibles. given our work today we can now provide this committee data that begins to demonstrate that the strategies put in place over the past of the years are working. there are four data points i believe that should give us great option. i senator baucus said, with more than 250 acos operating within a traditional fee-for-service program serving more than 4 million medicare beneficiaries. this tells us that providers, physicians are stepping forward to participate in new payment and delivery models. data point number two. after more than five years of

holding steady, the rates for all costco hospital read nation's is starting to trend downward. point number three. 37% of medicare beneficiaries who have chosen a private medicare plan are in a four-star, 5-star clip. five starting the highest quality. this is up from 16% four years ago. quality of care is improving. data point number four, and most exciting, the rate of growth and per capita medicare spending, per capita medicare spending has been at historic low rates for three years in a row. this is tremendous exciting from our perspective. to be sure, we have more work to do, but the work to date in the data we're seeing should give us great hope that we can bring medicare to sustainable financial footing and to improve the quality of care. i will be happy to answer your questions. >> thank you, mr. blum. my first question is, you're

cordoning office with the private sector. it's one thing for medicare and cms to put together kind of a care organization, clearly if this is going to work, after talking with, working with, coordinated with the private sector to to get some of the same agreed upon incentives or result. i think you just described how successful that's been. degree to which are working with the private sector, companies, insurance companies, et cetera and the progress you're making. >> the sake of ways to answer your question, senator. the first is that we study very carefully best practices and talk to private pairs, to really understand what they're trying to implement so that we can repeat or pay build off best practices. there are some very exciting

programs to foster medical homes for example, so we try very hard to understand how the private sector is creating new financial incentives. we also tried to craft our regulations in a way that's open, transparent. so private payers can copy, not county, but to try to build off the cms medicare experience. for example, we hear from large private health plans. they're also working to establish acos for their contracted physicians bill off the aco regulations that cms has finalize. and, finally, several of our new innovation models that are being tested really have an all. component to it. the pioneer model, for example, in order to get the pioneer contract for the aco pilot, the pioneers had to demonstrate that they also had risk-based contracts with private payers to demonstrate that their doctors working with the medicare program that working in the entire health care system. we have another pilot for the

innovation center to test how to build primary-care medical homes. that, too, has and all. concept for the providers to get the contract from cms has to do much at that they're also worked with private payers to ensure that we are all lining and pointing in the same direction. we hear from others that they're building off the value-based purchasing strategies. so we are trying to learn from best practices to try to instant all pairs to point in the same direction. but also to craft our regulations that can serve as models for private payers. >> you have a lot of demonstrations going, said it. when am i going to see results? you have demonstrations, i think, aligned with cmmi. you mentioned the 250 acos. of a lot of other demonstratio demonstrations. when are we going to see some

results? >> one result that we're seeing, that i've listed the combination of different factors is the reduction in all cost possible read nation's. we think about one percentage point below are from the previous five years that translates roughly to 20,000 fewer read nation's per month. and i believe that it is due to the payment policies, new models being created. so there is some result. the challenge is now how to assign cause and effect. many of these models were started in the last 22 years. we expect it will take two to three years if there's up front costs of providers to build a model. i think we need to be cautious looking at first year results. very much committed to sharing the data that we see. my boss, secretary sedney this, is very anxious to see results as well. -- secretary sebelius. any model has to go through the rigorous review but we are very

much committed to share our learning but i think one positive learning is that providers are very eager to step up. we are overwhelmed by interest. i think there is -- >> to have a system of interim results? >> we set a very -- we build and remodel with the assumption that it can be scaled. and a lot requires any model in order to be scaled that it has to pass that rigorous review by the chief actuary. so our team develop the data capabilities, the monitoring systems really with the endpoint hopefully will be that these models can be brought to scale, but they first have to pass best rigorous review. >> you have but doesn't make sense for you to share with us, you know, appropriate time and from? we want to keep informed and, frankly, just keep your feet to the fire. >> absolutely. we're happy to work with you and your staff to do the best way to

share results, share data. that's our commitment to this committee. >> i'd like to work out some system where that happens. >> absolutely. >> thank you. senator hatch. >> thank you, mr. chairman. we are grateful for the work that you do, mr. blum. as describing your testimony, each payment reform initiative has different incentives or penalties attached to them. are those proven to be strong enough to actually change provider behavior and? >> i think so. clearly we have to continue to study the trends that we are seeing. the trends that we're seeing are moving in the right direction. and i think one of the exciting trends that we are seeing is traditionally operated within silos are now establishing ties to the community. to physician networks. i think one of the most exciting transformations that we are seeing is what you describe the

goal to better integrate the silos of care that we have in the traditional fee-for-service program. so we need to continue to evaluate whether or not we have a strong incentives, but i believe the the trends we're seeing are due to the combination of payment policies but also the continuous push by the congress and by cms to better integrate care. >> the delivery system reform initiative underway in which cms has not waived stark or anti-kickback rules, and if so, what are those initiatives and what are the rules not waived? >> i have to doublecheck for you, senator, which demonstrations have waited stark and which have not. the aco program we really worked hard for the oversight agency, the federal trade commission, department of justice to review ways to relax those requirements but at the same time the

oversight principles that we have. we have come into the framework temporarily. continue to go through review, that if we can come if provided can demonstrate clinical integration that working together in new ways really improves the clinical model, then we are comfortable to relax on those requirements. we have the aco regulations, a time-limited period that will continue to monitor whether we are seeing any behaviors that are troubling, but i think the goal really is not just look at the payment but the entire oversight framework to ensure that we can best integrate care for clinical improvement. i have to get back to you. >> if you would. the patient protection and affordable care act cut $306 billion out of medicare advantage program to create a new entitlement. now, this is especially concerned since currently more than one in four seniors, including a significant number of low income and minority

beneficiaries, have come to rely on the better benefits, enhanced. ordination and higher quality coverage offered through medicare advantage program. according to external estimates the combined effect of the sequester, pacs cuts in higher taxes and other harmful new policies will result in at least an 8% cut to the medicare advantage program for calendar year 2014. i understand some of the rates and policies announced on february 15 in advance, in the advance notice are governed by the statute. but cms does have considerable discretion over many of the policies that have been announced. towards the end of want to clarify where you have discretion authority regarding the rate notice. as we both know, cms has historical chosen to develop rates based on the assumption that congress will not patch the

schedule payment cuts and, therefore, rates to him a plans are artificially low. do you believe the statute prevents cms from assuming more realistic payment rates, especially given the fact that congress has fixed the sgr for the last 11 years? if you could answer that yes or no, a simple yes or no, i would appreciate it. >> there's many elements here i will try my best to answer all of them. all elements to your question. we have been tremendously pleased to see the dramatic growth in medicare beneficiaries choosing private plans since passage of the affordable care act. beneficiaries who were in private plans are at an all time high, nearly one-third, and at the same time premiums have come down dramatically, 10% in 2012. our goal is to do two things at the same time, to ensure that beneficiaries continue to have strong choices to plans, but at the same time that better

payments are accurate. our rate notice that his proposed has proposed changes to our payment methodology. one of the reasons why the rates are proposed to be lower is the fact that overall medicare spending is lower. so a very good news story for the overall medicare program. we've also taken our discretion to propose changes to the risk adjustment model that was used for plants. and that's an area where cms does have discretion. it is cms is long term practice not to assume the cost or the sgr fix. that always happens after the rates are finalized, to our rate notice. we received comments for us to take a second look. but i think the best way for us to stabilize the m.a. program is for a long-term fix to the sgr. >> my time is up but i have another question on this on the arbitrary price controls, not as

total beneficiary cost thresholds, and i will submit in writing but i hope you will answer for that as well. >> of course. >> thank you. mr. blum, the last question was an important one. you'll have to find a solution your. >> i understand. >> thank you, mr. chairman. welcome, mr. blum, and have long known of your good work. let me ask you about your response to the fact that medicare reimbursement varies dramatically across the country. a number of us, i see my colleague, ma senator cantwell, senator grassley, a number of us on a bipartisan basis have focused on the fact that our stage really get clobbered by the federal government for doing a good job. we essentially get penalized for getting good quality and holding costs down. and now we are starting a very good model, one we like, the question of a shared savings approach to incentivize quality. and our concern is, what are you

going to be able to do to address the fact that low-cost states like ours are going to be disadvantaged at the get go? because we start off with lower reimbursement rate spent so i agree with you, senator, that fee-for-service payments and quality varies dramatically across the country. we have some parts of the country that operate at very high quality levels that low-cost. i think our overall goal i believe is the goal of the affordable care act is to develop policies that promote more parts of the country, hopefully all parts of the country to operate the highest quality level at the lowest cost, total cost of care. but you also see tremendous variation, not just between regions of the country, but within region. we have the lowest cost part of the country and have dramatically -- >> your approach than to make sure we don't get penalized is

to say that somehow we will just use our region as a measuring rod because -- >> no. i'm sorry to cut you off. >> we just want to know how we are not disadvantaged at the outset spent i believe the best payment strategy for the fee-for-service traditional fee-for-service program is for us to create incentives out of hospital level, as the physician practice level, to reward high quality care and lowest cost care. that is what i believe our value-based purchasing program for hospital it is so important because over time, it will reward hospitals not just for better quality of care but lower total cost of care. the value modifier position proposal we're working to implement is also vitally important to the strategy. i think the overall goal is to create the incentive structure not at the regional level but at the provider level, the physician practice level because even in low cost regions there is still tremendous variation within that region. >> i certainly support the gulf

where you're trying to do. i'm just not sure we're going to get there very fast and less we root out what is a bait to end discrimination against a lot of parts of the country getting good quality and have been penalized for. we will be following up with you on that. i want ask you another question about chronic care, which as you know is where most medicare dollars bill. 70% heart, stroke, cancer, diabetes and it just continues to escalate. look where medicare was in 1965 once again, and today. senator hatch noted it in terms of that article in "time" magazine. that's what the medicare dollar goes. so i looked at the two bottles with respect to medicaid and medicare, with respect to chronic care. and it looks like you all were working on a very second model with respect to medicaid and the role of the states. specifically targets coordinated

care for those who have these chronic conditions. it doesn't seem to me that medicare is doing the. in fact, medicare has a different name as you know. but it looks mostly about like realizing payments for doctors on primary care. it doesn't put the same focus on, and particularly given the growth of medicare as relates to chronic care, i want to shore that up. and what else can be done, in your view, consistent with the statute or other ideas, to give us a chance to target in on what most of the where the medicare money goes to we do with that 70% and you are a long way even with a demographic tsunami in our big challenges. >> that's a great question, senator. the first way to our center was really around building the economic model. and that was phase one. but we are hearing from

physician specialty societies, for example, oncologists that want to shift to a different model, that want to be accountable for the total quality total cost of care, same is true for cardiology. so i believe that face to will be -- phase two will be to really build upon the savings models that we have -- within the aco contacts, but then to start to channel the energy that we are hearing from physician specialty societies to bill payment models specific to chronic conditions, oncology, cardiology issues. and that i think is a problem for the next wave of innovation. >> i know my time is up. >> senator grassley? >> say, you know, it's always good to see a former finance staffer triumphantly come to one of those chairs your end. spin is always easier to sit behind them. [laughter] >> well, good.

you know, i think like a lot of my colleagues, i've grown to have serious concerns about medicare fee-for-service payment system. referring to your testimony, the outline always that medicare is trying to improve care coordination. i appreciate the steps that you are making, and you are going to continue forward on that. i want to focus on the system that you're stepping away from. so, is there any defense with emphasis upon any come is there any defense for medicare fee-for-service where a provider is paid based on the quality of service provided without any regard to the outcome or quality of care provided or any responsibility, coordinated care to other providers? >> i believe that we should work and the congress has given us the charge that every fee-for-service system that cms maintained should be tied to

quality, quality of care outcomes and the total cost of care. we are further along with the hospital payment system, and that payment system is increasingly tied to the outcomes and the total cost of care, not just the care that is provided within those four walls of the hospital. over time, cms is authorized to transform all these payment systems to achieve the same goal. we have to make sure that we have the right measures, we had to make sure we don't create perverse incentives. and i agree with you, senator, that we need to work together and cms is committed to this committee to make sure that all of our payment systems begin to adopt the same principles that congress has authorized for the hospitals. >> so, there isn't any defense of medicare fee-for-service anymore. we are working away from it so there's no defense work. thank you very much. reference to the chart here.

since you mentioned coordination between medicare and medicaid, i'd like to bring up something with you that i discussed with melanie bella when she came to testify recently. the chart shows the most expensive medicare beneficiaries. these are the people with multiple chronic conditions and functional impairments. 57% are eligible for medicare all my. 43 our duly eligible. the current dual demonstration of history focus on giving states greater control over acute-care for these most expensive beneficiaries. some rhetorical questions and i'm going to ask you for your comment. why are we splitting up these two groups? these are two groups similarly situated individuals. they have multiple conditions that are expensive. why not, why do we tell some people you have income so you get medicare, you don't have

enough income, so you get solely medicaid. why is it a good idea to give states control over low income beneficiaries ask why should low income and fisheries get one of any 50 different models to go to their care and people with income get medicare? so i would like to know what you think because i'm very concerned about splitting these individuals, the splitting of these individuals makes no sense. >> well, as the person who oversees the medicare program within cms that ugly that the models that we are testing to better integrate dual eligibles do not take away any rights or benefits that duel eligible beneficiaries are do. in fact, the model that melanie bella is leading just set up will strengthen, want more oversight, more control. and i think most dual eligibles beneficiaries are within the fee-for-service medicare program that you described.

they care is courtney. medicare beneficiaries balance between different care settings, and we want to make sure that we are using the best of the medicare program, the best of medicaid program. so in my view, i do not believe that dual eligible demonstrations are seeking that control to the states but rather is building a very powerful federal-state partnership to take the best of the program, to even better benefits, more coordinated care for the beneficiaries. but i think really the goal should be to make sure that these beneficiaries have better care, more coordinated care, and to reduce the duplication that you described in your first question. >> thank you, mr. blum, and thank you, mr. chairman. >> thank you. senator stamina spent thank you very much, and welcome, mr. blum. it's good to have you before the committee. i just want to start by reiterating what i think it's

important news of what you been saying today and what we all know that we've made challenges around health care costs and our focus when we look at how we put in place health care reform that works for people quality can also bring balance -- brings down costs and how we reduce cost, not just shift it around which is what health care system has done what so they can what so they can see a doctor they go to the emergency room, costs a lot more money, and how do we make sure we are actually not just shifting costs around. but if i understood you right, you were saying right now we have 250 accountable care organizations, hospital admissions, readmissions is going down, court is going up to the rate of growth per capita is going down. the medicare advantage program is seen a 10% premium reduction as well as i have seen 28% increase in aroma, something like that. and we know that part of that is bringing down the overpayment in

medicare advantage, which was significant savings under medicare. i wonder if it's become a bit more to accountable care organizations. we have a number of things happening in michigan that are actually very exciting in terms of the possibility of detroit medical center has been working with a group called at home support to help the six patients yet advanced support at home and prevent hospital readmissions so if you have example, 87 you patient with stage for heart disease who wakes up i in the middle of the night and would normally can if they have concerns go to the hospital emergency room, be in the hospital, come out, go to skilled nursing facility and so on, all this cost tens of thousands of dollars and certainly is not the way they would like to spend their time. under this model, the same woman would get the add-on services, able to call a nurse in the middle of the night, beatable to

get help and possibly be able to allow that patient to stay home rather than go through everything at the hospital. could you talk more about the acos and how you see that expanding and the importance of really, really making sure those kinds of things are successful? >> we have been very surprised and pleased with the response that cms received to the aco program. the program has 250 acos, and we expect that number to continue to grow. the program was authorized by congress have an annual process to allow more organizations. what is really exciting about the aco program is they are being staffed by physician practices in large part of sorts not necessary just hospitals that are developing acos, but physicians to step forward. we created different tracks, pioneer model for the most

advanced organizations to really shows what's possible to build more advanced account will care models but also to teach others who are coming into the game for the same time. but to your point, senator, the aco model really is about making sure that care is paid for in non-face-to-face settings as physicians have greater resources to coordinate care, to manage care, to build the infrastructure of nurse practitioners, nurses, other health care professionals to watch patients navigate to the health care system. but i think the aco model really is one of our most promising models to transform fee-for-service to give the incentive for that care coordination. and to reward providers for the non-face-to-face time to best manage patients spent and with more to do but it's certainly optimistic right now as we get started in this. i wanted you might also speak to another type of demonstration

project that's strong start initiative which is focused on preterm birth, basically premature birth that put those moms and babies at risk, and this is included in maternity care, home demonstrations. in fact, a number of us are working on legislation where we are introducing today calls the only care for moms as well. over three of those projects in michigan. one is run by meridian health plan and regions hospital. and it's focused on being able to reduce premature births which is costing the country about $26 billion a year, not to mention what's happening for children. and i wonder if you might talk a little more about those kind of areas and what we are learning from eliminate results. >> i think the goals of the project really are to reduce the number of preterm births has

potentially harmful both for mothers and for children. we have just begun this demonstration. they are watching the results very carefully. we will be sure to bring information. but really the premise behind the demonstration is to take evidence-based protocols, to disseminate those daycare providers to create messages that preterm is potentially harmful in many cases. we will pledge to share results as soon as we see them but we are very excited about this. >> thank you. >> thank you. >> [inaudible] spent i'm sorry, with delivery of health care in rural areas but and it has to do with the 2009 cms ruling and policy i guess i should say regarding direct physician supervision of outpatient therapeutic services. hospital, physicians and rural health care or decisions recognize this trend as a

burdensome and unnecessary policy change, but cms characterize the change as a quote statement clarification unquote of existing policy in place since 2001. in its attempt to clarification, cms retroactively interpreted the policy provide supervision, and be physically present in the same outpatient department at all times and outpatient therapeutic are furnished with a struggle that has not been the practice. i'm concerned that cms is quote clarification is instead a significant change in medicare policy to replace -- that would place burdens on hospital but i'm concerned the panel convened to advice on this issue is not sufficiently consider the input from rural critical access hospitals. and my question is, will you agree to return to the pre-2009 interpretation of this policy? >> in 2009, you are correct that cms made legal policy clarifications. i believe critical access hospital committee made come

interpreted as fundamental changes. we heard a lot of concern, we heard a lot of complaints. and 2010 i traveled through north dakota to meet firs firstd with critical access providers, and we heard tremendous concern regarding the challenges that our clarification would provide critical access hospital. we decided to back down, slow down to create this physician hospital provider review panel to help us understand what services don't require direct physician supervision. that is the framework we are willing to mind are saying is that it's working better for the critical hospital perspective. i would love to hear your views, how we can improve that. but i believe that we are working to address the concerns that we heard during 2009, and seeing hospital care for sammy very helpful for me to understand how those work together with the hospital communities to solve this issue spent i'm glad you went out and

got some of the prospective come and we will be happy to provide feedback we get from providers in our part of the country because it's an important issue in terms of delivery health care. >> absolutely. >> your testimony outlined some initiative cms is initiated with the goals of lowering cost. the question is, if these proposals are going to significant or going to significant or sufficient i should say low health care costs for taxpayers and patients, why is the independent payment advisory board necessary? >> well the independent board is outside of cms, it's my mistake so i can't speak to it directly. what i can say is from the person operating the medicare program, it is tremendously helpful to pressure from congress, from outside boards to keep spending low. we work in cms to ensure that we are building policies, to keep spending low, to ensure code is improving at the same time. but having a system of checks

instrument is a helpful to ensure that we are pushing on all of our payment systems in a way to maximize quality but to reduce total cost and care spent it doesn't sound like it's all that necessary for you to accomplish the initiatives, the things you're trying to publish her, both the things that cms is doing on its own? >> what i would say, senator, is that this focus needs to continue. the pressure needs to stay on and there's multiple ways to receive that pressure. having that pressure is the best way, in my judgment, to continue to focus. that's been there for the past several years spent the last question has to do with electronic health records. and the rate at which cms is implementing the stage one in the last six months, i think stage one has been implemented. published a final rule for stitch to an already seeking feedback on stage three. there are still a lot of reports

out there that question the effectiveness of the adoption but and i might question is, deeply that cms is conducting appropriate data review before accelerating into stage two and stage three to ensure that that program is on an appropriate path toward interoperability between unaffiliated health systems or providers? >> a couple ways to answer your question, senator. we are pleased with rates of adoption, of hospitals and physician practices to respond to these new incentives. one of the things that we hear from entities that are participating with a new delivery model and acos is a model wouldn't be possible but for a strong strong medical records i believe we have to evaluate the impact to the ehr program, not just the program itself of the total changes that we're seeing with an health care delivery system. so hospital readmissions coming down, that's a sign to me that health care systems, health care silos are not talking to each

other better to reduce the lack of care coordination. we are committed to oversee the program if we're happy to work with you and your staff to best understand how we can best oversee. we are also concerned about some of the reports that ehr may lead to inappropriate spending or services. we take the concern very safely. but we are committed to into this program continues to expand while also preserving the integrity of the program. >> thank you. >> thank you, mr. chairman. and again, thank you for having this hearing, and many of the hearings that you are having on the subject of the implementation of the affordable care act. i think it's of the utmost importance, given the size and scale of its impact to our economy that the agency is held accountable during this process but and i certainly appreciate the reminder that mr. blum used to be a member of the staff here so maybe he could become an

extraordinary emissary to the agency as it relates to communications. because i think there are many things many members have shown a level of frustration about on the implementation of the affordable care act. i wanted to follow up one of my colleagues, mr. wyden and senator grassley about the physician payment. you talk it what's happened with hospitals. the physician payment is one of the most cost-saving provisions of the bill. i want to get an update on the progress that i have three questions over and get to all that in five minutes, but the progress of that value index as relates to physicians and why we don't just put out like a global great? and -- global rate? and if you fall below that you u are rewarded and the default above that you are penalized. i mean, that might be -- and some progress on the we

balancing from nursing home caretaking and debased care. do you see that as a big cost saver? if you could start with those to? >> thank you for the question. i believe the value modifier physician payment change that was authorized in the affordable care act has potential to be one of the most significant changes for the fee-for-service medicare program. it's also one of the hardest, probably the hardest policy we're working to implement for a couple different perspectives. the challenge is, medicare beneficiaries who have many chronic conditions see many physicians. vacancy 12, 15 different positions in the course of a year, and how you can assign the accountability for the patient's total care is very challenging when they're seeing multiple primary care physicians, multiple specialists. so we have chosen to face in the value modifier by first starting with a large physician groups who are over 100 professionals

because of the greatest confidence we can assign value and quality for that large practice. we are very much committed to the policy. we are committed to the scheduled those outlined by the congress, but this is the hardest policy that we're going to need all the advice from this committee, the physician community, but we have started the process that will take effect 2015. but you will see more will making this year to continue to phase in. >> i think it starts in 2013 and is not fully of a minute until 2017 or something. so think we have lots of time. it's good to hear that you think it's one of the biggest cost savings. i wanted to ask about the basic health plan. one of the issues here on savings dollars within the medicare budget is, medicare will take everything we have just because the aging population and living longer. so we want to get it right. but in the affordable care act, we have to provisions, the basic

health plan, which is annual cost in premiums a lot lower than what they would face on the exchange. and then the population -- go back to that chart for a second -- put it over here. this particular population is a very narrow population on the exchange, but some of the agency seems to be very anxious instead of implementing the law in 2014 as told by in the affordable care act, seems to be anxious that some of giving this population just about the medicaid rate a more unaffordable benefit plan as outlined in the first chart is somehow against the interest of the over all act. and if you could shed any light on that our certainly appreciate it spent a couple ways to spot, center. i haven't personally worked on this issue so i can't speak to the decision-making hide it. i do believe, i do understand

that they have promised to provide to us to schedule of how we plan to implement this provision but we're happy to work with you and help answer those questions. >> it will not have my support. i'm not interested in how she's going to implement the act. i'm interested in a commitment to the administration to live up the way the affordable care access the provisions state should be of limited. and right now i can't get anybody at cms to own up to the fact that states under the law could receive 95% of the tax credits to provide cheaper care, as the first chart showed come to the beneficiaries instead of making them out of pocket expenses. so i'm not interested in having a schedule of what date is going to be implemented. i'm interested in the agency making sure it doesn't thwart a more cost-effective solution to somehow save the exchange. when that's really a false

issue, in my view point. so thank you so much. >> thank you, senator. senator cardin? >> thank you, mr. chairman. mr. blum, thank you for being here. thank you for what you do. it's impressive that you of a three-year record when the per capita cost of bringing that down. delivery system reform is clearly the best hope we have a continuing that trend. so this hearing is particularly important. i want to talk about a recent decision that was made in regard to pediatric dental benefits which has me concerned. we are at the six-year anniversary of the death of a 12 build who died in my state in regards to dental care and that was not available. we have made a lot of progress on this and i really applaud the efforts that have been made. it's my understanding that you are now allowing for separate deductible on standalone dental plans. and i'm concerned that that is

similar to policies that were made decades ago by mental health services. which tend to say the second class health care rather than a part of the benefit package which was our intent, the affordable care act. nuj share with me what leadership will be done at cms to make sure that, in fact, does not take place, that there are reasonable coordination of benefits so that our intent of providing pediatric dental will, in fact, be a reality? particularly where the federal government is in the lead on establishing exchange is spent i think one of the lessons we learned within the medicare program is that when they care is silos or benefits are not fully integrated, that can often lead to worse total health care consequences. i pledge to get back to you with direct answer to question but i do agree with the general principle that would benefit

design is broken up and care is not coordinated, that it can often lead to bad course of cares i'll be happy to get back to provide direct answers spent i appreciate that. the federal will be playing a key role in many states in regard to setting up the alliances, and you'll have some role with the states. so i think there is a real opportunity for you as exchange or set up to play a leadership role, and i thank you for getting back to me. let me ask you a question about minority health. the affordable care act, high priority on establishing offices for minority health, minority disparities. we've made some progress in looking at the cancer death rates. generally there's been progress made when you look at some of the specific areas in regard to the colon cancer and in regards to rest cancer, where screening -- breast cancer were screening is critical to proper care, the

disparities are still great. can you just share with us the commitment that you have at cms in getting with minority health issues to reduce disparities? >> the commitment is tremendous. believe the affordable care act which is now established are required to cms set up a separate office to focus on minority health to make sure that our programs are coordinated and responded to the challenges. one of the things we've done particularly with the flu vaccine is now that we have the capability within cms to track claims, pin point zip codes, pin point geographic areas, so we can target resources. i think the best strategy, screenings are taking advantage of is to use technology to build committee programs. wwe're working much closer with public health organizations, related to of all beneficiaries. and particularly focus on the pockets of the country where we see screening use lower than the

national average. but we're happy to continue to hear ideas, but i agree with your statement spent and if you would come to my office informed as to the resources being devoted to these efforts and the progress that is being made. we were very much appreciated. it. there's offices in an effort of health related organizations. and we are trying to court made the efforts that are being made, so if you keep us informed i would deeply appreciate that. one last question on the cat ever also hope dashed and we all hope you will have a permanent solution to this we do have to do with it every year and we can get a permanent policy on the therapy cap. in the wisdom of congress to impose a new requirement, i'm not so sure how wise that was for us to do it, but i am concerned as to whether that we're setting up another bureaucratic problem for those that rely upon some predictable policy. can you share with us now or later how you plan to implement that and the way that won't lead to additional problems for the

industry, providing services? >> sure. i think whenever we have policies that span -- suspended 12 months, that creates challenges for providers and creates challenges for beneficiaries but i think the principle should be the beneficiary should know what the benefit levels and the providers should seek predictable payments. i think one of our ways to address therapy cap long-term is to ensure that we pay operably for therapy services. this is an area where we see abuse, particularly in certain parts of the country where tried to improve the payment policy by paying for services provided together at the same time. so i think a combination of smarter payment policies targeting the bad actors, not all therapists are certainly, don't provide fraudulent care. but i think a combination of better payment policy, discipline, will hopefully relax the need for congress to

continue to have to reauthorize this policy. >> thank you. >> senator casey? >> thanks so much, and we're grateful for your testimony and your presence or command obviously your public service, and the ways that our business has engage with yours but i'm grateful for that. this is very difficult to tackle, these issues that relate to delivering better care at a lower cost. but it seems like you're beginning to unlock that door, so to speak the wanted to ask you about based upo on what you already, and i know in some ways it's still early stages, but you are already seeing some good results. is there anything that you learned or have just begun to ascertain about delivery system results in medicare that you might be able to apply to medicaid? >> i think one of the lessons that i've taken is that when

providers seek complete data to their beneficiaries, it opens up many opportunities for better care coordination. and one of the, i think the major benefits that the aco participants have now is the ability not to just see their own information but part a, part b and prescription drug client information that can yield clues about lack of care coordination, have beneficiaries follow through the cracks. so i think just having that information and helping providers to create the management structures, to see data to understand, to respond to data, is tremendously powerful. for the providers that are participating with the new bundled payment initiative, hospital combined with physician and post-acute, they're telling us that they had no idea that their patients were going to 10 different skilled nursing facilities and certain nursing facility at higher than other

readmission rates. just seen that data i think is going -- is one of the most powerful changes that is occurring. >> i want to ask as well because your testimony, a lot of analysis and summary of the way you're doing this, has been very helpful to us as we learn more about it. i was looking in particular two pages of attachment, two things that struck me about and the whole challenge of reducing hospital readmissions, which everyone knows is a health issue because people get sicker when they don't have, when they have a readmission, that means by definition they are in some kind of jeopardy. but it also is a huge cost implication for all of us. on page four, the last paragraph, you said the affordable care act established hospital raid mission program. then later, paragraph can you

say we measure the readmission rates for three very common and very expensive conditions for medicare beneficiaries. heart attack, heart failure and pneumonia. and then later, page eight, talk about the national partnership for patients aiming to save 60,000 lives, which just leaps off the page, i think for anyo anyone. and you do that by quote averting millions of preventable hospital required conditions. i wanted to get your sense of how that, how that's going? you know, how successful you are being at reducing hospital readmissions. because it's self evident that it's both a better health outcome for a patient or their family as well as a huge cost saver. >> one of the things that we have set as one of our primary

measures for assessing how successful we are within cms, the payment reform strategies, is the rate of hospital readmissions. we track month-to-month rate of all costs, medicare reignition. in the last 12 month or so we have started to see a consistent downward trend in that number. and i think their are many policies that are being deployed, penalties, technical assistance, but i think one of the most powerful statements that happens is that congress acted and said that quality of care is now being assessed through readmission rates, which has transformed the business model for health care delivery systems. i used to hear personally providers say it was -- is too many communities factors at play or the health care systems were not built to do this. but now i hear that it is possible, that they are seeing results in our data. we still see tremendous

variation across the country and hospital readmission rates. the current rate is roughly 17.8%, but there are some parts of the country that are much lower than 17.8%. so we know it's possible to drive his average down even further. but i think the most fundamental change that happened was that congress acted and said that we will assess quality of care, in part, through these readmission rates. >> thanks so much. appreciate it. >> how are you doing? >> good to see you again. >> thanks so much for coming to delaware and spending time with us. i think it was senator hatch to raise an issue of sgr. sgr in trying to fix the sgr problem. and i just want you to share with us if you will, your own fodder to, we hear so much from health care providers that without a permanent solution for

sgr that doctors and hospitals will not be up to fully in on our health care system. i've heard it often. we have a responsibility here to try to figure this out, and i just want to ask you, your old hat, when you sat behind these guys over here, and your hat today. what kind of payment policies do you think might be good candidates for replacing existing payment systems? >> i agree, senator, that the annual crisis that was created when we faced the physician payment cut creates tremendous havoc for the physician community. as far as beneficiaries, for payment systems that are tied to the current system. and it is a tremendous challenge

to manage the programs to this continuous learning cut. i think there's two ways to break down the sgr's. the first issue is we have an artificial baseline built into current law that continuously assumes a 25 or 28% cut. so to my analysis of there's no way around that baseline correction that needs debate to the total medicare -- medicare program that only congress can authorize. at the same time, the second issue is that we need to figure continuous ways to improve how we pay for physician payment. to incent greater care coordination, to incent chronic disease management to pay for the services that happen outside of the faith-based interaction. we're testing a variety of models. will continue to expand the focus to figure how to incent this care model that i believe we all want to see. but that won't substitute for the baseline issue that

congress, that congress has to authorize. >> okay, thank you. one of the major drivers we note in health care in this country, is obesity. and another one is improving medication. we're hearing very large number on both of those. could you just give us an idea what cms is doing, one, to combat obesity? how can we help you do a better job? and also, any comments you care to make in improving medication adherence and how we can help do a better job? >> one of the things that congress can do with the affordable care act is add many new preventive and the surface to the traditional fee-for-service program. the annual well as i think is one of the greatest opportunities that we have to continue to die beneficiaries more to their primary source or primary care.

the aco program really is the same notion. so i think a continued emphasis on primary care, wellness, i think is our best strategies to address a obesity. and we are also seeing very promising results in our part d program to create voluntary incentives to better manage quality pharmacy medication management, that we are starting to see some signs that better management to prescription drugs leads to overall lower cost and hospital spending, other traditional medical spending channels. so i think more emphasis to better manage and coordinate prescription drugs is one of our best strategies to reduce total cost of care. ..