parties. after that a discussion about how international law can be applied to cyber warfare. then a look at future trends in the aviation industry at a recent summit of the u.s. chamber of commerce. and later, we're live as legal and policy analysts examine the constitutionality of federal boards and commissions created by the dodd-frank and federal health care laws. >> later this week, negotiators meet in kazahkstan for the next round of talks on iran's nuclear program. today the brookings institution holds a preview of the negotiations. speakers include two former officials with the european union and the u.s. national security council who will share their or experiences dealing with iranian negotiators. you can watch the event live beginning at 10 a.m. eastern over on c-span. >> monday night on "first ladies," anna harrisson, whose husband dies after a month in

office, louisiana tissue shah tyler who becomes first lady as her husband assumes the presidency, but she passes away just a year and a half later, and julia ty her, who becomes the president's second wife. >> julia i think of as the madonna of first ladies. she loved publicity. she had actually posed as a model at a time went that was, needless to say, frowned upon. she was known as the rose of long island. by all accounts was bewitching. she certainly bewitched 57-year-old john tyler. who married her. and she loved being first lady. she had the job for less than a year, but it was julia tyler who ordered the marine band to play "hail to the chief" whenever the president appears. it was also julia tyler who greeted her guests sitting on a throne on a raised platform with purple plumes in her hair.

it's almost as if she receded to that more queenly role that martha washington had deliberately rejected. >> we'll include your questions and comment about these three first ladies by phone, facebook and twitter tonight live at 9 eastern on c-span and c-span3. also on c-span radio and c-span.org. >> a discussion now on china/north korea relations and their impact on the u.s. you'll hear from john park with harvard university's center for science and international affairs. he talks about the strengthened relations between the countries' communist parties, the leadership of north korea's kim jong un and the unintended consequences of sanctions against north korea and its nuclear program. this one-hour event was hosted by the korean society in new york city. >> studio korea, and welcome to the korea society. my name is stephen harper, i'm

the senior vice president here at the korea society. we'd like to welcome all of you, specialists in korean policy, friends of korea, and this afternoon we'd also like to welcome c-span viewers and thank them for joining us as well. we're delighted this afternoon to be talking about a very timely topic on the issue of north korea/china relations and to help guide us in that discussion is john park. he is the mit stanton faculty fellow. he is also an associate with harvard university's kennedy school. john, welcome. >> thank you. >> we're delighted to have you pack. john was with us two years ago for what was a very wonderful set of insights, and he's here to update us and guide us along in a discussion on what really are pressing issues. we know that there hack a -- there has been a resounding rhetoric which has concerned the international community coming out of pyongyang, and so we're

going to begin, actually, by asking john about the current context and thoughts e has on the current start dilemma on the peninsula. and then we'll move into issues of china's relations with north korea and vice versa. john, welcome. >> thank you very much, steve. of it's a pleasure being here again. to share some thoughts on the current developments in the region, you know, i'd like to contextualize in terms of how i'm seeing some of the trends going on through the lens of new leadership in the region. this is something that is, frankly, not a surprise. this has been anticipated in terms of change of leadership in all of the countries in the region in many approximately the same time period. and i think with that there is an opportunity to see in some countries the consolidation of power as we're seeing in north korea by many accounts, and in china with a new leadership there. the power consolidation introduces, i think, interesting elements and ways to look at some of these recent

developments. when we zero in specifically on the korean peninsula and these almost daily threats coming out of north korea and reactions through the u.s./south korean alliance by way of last week, overflight of b-52 bombers and most recently b-2 stealth bombers, this is by many accounts different from what we've seen in the past. but i think in terms of one type of development that i would zero in on and, you know, emphasizing how it's different is the way in which north korea's walked away from these hot lines. there can be an interpretation that there's more symbolic to heighten the threat, but in an operational sense, the crisis management capabilities in the room within which the parties can manage crises or potential escalations that do happen, those spaces are drastically reduced when you do have these measures such as walking away and announcing null and void mechanisms that have in the past been quite pivotal.

but the key thing here in the all of these developments, i think, is to look very carefully at a new leader in north korea who, i think from an outsider's perspective is probing the different parties around him p in the different countries. so one way that i frame it is almost as if north korean leadership and kim jong un is conducting a lot of observations right now. so for each threat looking at the different reactions and almost jotting those down in a book of flinches to see how these new leadership elements react to these tensions. i think that's very important optional intelligence for a new structure like the kim jong un leadership and something that can potentially be configured for future interactions later down the road as well. >> but it seems, john, that the reaction from the international community despite the hysteria as one of the european news services put it out of pyongyang has actually been muted, that there's been a very constrained

response certainly on the part of washington and seoul. in fact, president pack nay has actually spent food aid north and as put in some gentle reminders relative to her commitment to trust politic. how do you weigh that against the expectations of north korea with this crisis language? >> right. with the crisis language, the big, i would say, marker of of the current round of escalation can be traced back to the passage of u.n. security council resolution 2094. there were rearound fir mission of privacy measures but in measures in terms of some of the money activities and so fort. the reaction from north korea was quite visceral. but many a macro sense, if you look at what happened, it was the united states and china coordinating very closely in getting that resolution passed. i hi for north korea, that type

of cooperation is lethal if it's maintained, because it drastically reduces the space in which it can leverage different parties off of each other. one way for north korea to get that type of cooperation to go -- by way of heightened tensions between washington and beijing is to elevate tensions to the level where the chinese come in and basically ask all the parties to exercise restraint, backtrack on some of these cooperative areas and, essentially, start to get the triggering of criticism from washington that china is coddling north korea rather than reining in an ally during a very criticals calculation period. the element here that i think we can see in terms of this almost north korean ratcheting up of tensions and getting the type of reaction that would invoke some aspect of a response from china is the u.s. use of their b-52 bombers last week and their b-2 bombers now. although those are cleary a

message designed -- clearly a message designed for the north korean regime, that's the deterrent stance of the united states in north korea is very strong and something that shouldn't be invoked at any time, you know, try to counsel north korea not to engage, for certain respects in china -- elements in the china, those types of capabilities right at their doorstep feeds into their existing concerns about containment, that the asia-pacific rebalancing is nothing but a formalization of this containment where the u.s. through its friends and allies is encircling china and preventing its rise. so that's the part where my, you know, take on this was if north korea were to get that part right, you suddenly have an elevation of tensions to the point where they break that pattern of cooperation between beijing and washington. >> a would worrying tipping point. let's move more fully into the china/north korea relationship, and given what you've just said about that enhanced or potential for enhanced threat perception

on the part of beijing, especially relative to u.s. intentions. do you see the concern about missiles, the concern about a missile shield being something that reinforces them, the china/north korea relationship? looking at it from a larger strategic vantage, or do you think it's something that is not played out quite that much? >> one of the interesting developments in china is the growth of different interest groups vis-a-vis relations with north korea and also relations with the united states. so when we see things like the north korean missile threats and a threat to attack the united states with nuclear weapons resulting in the beefing up their interceptors, there are currently 30, now there are plans to beef them up to 44. those stationed in california and alaska. that type of response from the united states is not viewed in, i think, key groups in china as

geared towards the north korean threat. the north korean threat is seen as serious, but not at that capability to invoke that type of response. so again, it feeds into key groups' fear of this containment, of the c word here. and with that there is the concern that north korea is causing problems that directly put the united states and china on a collision course. i think those separate groups in china tend to be the ones who see the importance of cooperation especially with the united states as they continue with economic development on a sustainable basis. but there are other groups in china that, i think, are sympathetic in terms of the david and goliath relationship that they see between north korea and the united states, and these type of responses coming from the united states as being disproportionate and contributing to even more escalation of crises on the peninsula. so you have different narratives on the chinese side which i think makes the managing of this particular set of crises more challenging than in the past. >> interesting.

let's go back to this issue of regime consolidation, and if you could outline for us what it means in terms of shi zinn ping's rise, consolidation now over the last year, how do you see the new leaderships coming into place in both, and how does that impact the china/north korea relationship? >> right. i thought the analysis of the succession process in north korea and china was eye-opening in terms of the lead up to both countries and both regimes going through that type of process because in many cases they were viewed independently. but i think there were very interesting similar petrie call developments, and this introduces the debate of whether these were incidental or whether there was a causal link. but if you look specifically from the period when kim jung-il has his stroke in august of 2008, there was a period that fall where the debate in washington was that he was

either dead or incapacitated. nonetheless, this was the beginning of the collapse of north korea, and there were efforts at the highest levels to engage the chinese in discussion cans about contingency planning, how to deal with the failed state in north korea. when kim jung-il came back on the scene in february 2009, at that time you saw the director of the international department of congress party of china going to pyongyang, news camera team videotaping everything. kim jung-il was documented and videotaped being in full command of his speech and movements and what not. so it quickly ended those us decision pigses and -- suspicions and those worries and those very large worst case she nay yores. with that you see kim jung-il implementing this accelerated leadership process. and a key element of that were the three visits that he made to china during the period of about may 2010 to may 2011. again, the an us here was predominantly done on post-trip

analysis. every time he went, the reeding of the tea -- reading of the tea leaves. but if you take a step back, there was very important incremental institution building with the communist party of china and a resurgence of the workers' party of korea through kim jung-il's movements if these areas. and with that you see the beginning of xiaoping at that time being referred to as the rising generation of the party, the coordination of leadership transitions in both countries happening in a way that was quite startling. when kim jung-il in the one particular visit went over, he brought a very senior workers' party delegation, and he was met by every current and future leader on the chinese communist party side. and the type of red carpet that they received is unprecedented. and so with that you get the sense that the type of relationship between the party-to-party, there's something more going on. and my take on what the big factor was, was this was a chinese effort to rebuild what was essentially a broken

relationship. if we look at what i think in many circles is seen as ancient history but in asia only seen as a bat of an eye, yesterday, in august of 1992 china decided to normalize relations with south korea. china was in desperate straits. they had, basically, been the subject of intense sanctions themselves after '8 t in tiananmen, and so you see the situation where china needed the type of benefits that south korea was offering at that time as part of its broader northern policy. and so in return for trade credits for, from south korea to china and south korea's help getting the asian games for the chinese, the chinese fundamentally reoriented their relationship with north korea. and, essentially, severed the old ways of doing business. the north koreans responded by calling this a great betrayal and cutting off all party-to-party ties. we have about a lost decade in interactions between china and north korea, and if you recall this time period in the early

990s where the north koreans crank out plutonium in their facility, they go by the way of putting all their eggs in that one basket of racing towards further increasing their nuclear capabilities even at that very nascent stage. but also north korean goes through the great famine and becomes a fully-fledged failed state. in the late '90s, early 2000 period we see the advent of chinese strategic aid, and this is, essentially, i think in many respects the bailing out of north korea. and it's through this type of relationship that we see north korea slowly recovering -- >> fuel and food stuffs. >> exactly, exactly. and so survival aid. and with that, the culmination of what we see as this process was not a linear improvement, there was difficult a period when it wasn't all just rehabilitation of the parties by relationship, because the 17 years of kim jung-il's rule was definitely through through the military, the national defense commission.

when he came on the scene and succeeded his father in 1994 after his father's death, kim jung-il inherits a broken state. he jettisons, frankly, many parts of it and focuses on the military, the only viable organization through which he can run the cup. and he does so -- the country. and he does so to the point where the party atrophies in north korea, and it's through this decision of how to facilitate that rapid succession profession with his son, kim jong un, that we see this rapid ascension of the workers' party. when they con convene a party conference, the first order of business is voting in new new delegates because the party didn't meet in the way that it had in the past. so this point about the party of of to-party is significant because right now i think what we're seeing is further institutionalization of that relationship, and the succession of xi zinn ping now at a level

where both of them have mirror positions in terms of the main titles. so xi jinping is the chairman of the central commission of the party, kim jong un holds similar titles. in areas where xi jinping holds the top title, kim jong un usually holds first minister or something first to denote that his father holds the official title in that area. kim jung-il has certain similar eternal titles as well, but in an operational sense, they are both the respective heads of these very important bodies within the military and the party structures. so with that i think what we see right now is a chinese effort to further implement what they call the balanced korean peninsula strategy. the chinese really don't have a stand-alone north korea or south korea policy. it's always interesting to see when we see efforts from washington or seoul to pressure beijing to do something via their north korea policy.

that is one piece of it, but without really taking into account that larger chinese game plan of having a balanced korean peninsula strategy. >> let me pick up on that, because we talk about a china strategy toward north korea, but it really seems there might be multiple china strategies. it seems there really is a diversification of opinions in china at academic levels and perhaps even at the governmental level on how to deal with the north koreans. and there has been suggestion of rise of a new pragmatism, that maybe the north koreans aren't worth as much for all of the difficulty posed to china. how do you interpret that, and how do you interpret the official line relative to that -- >> right. >> are -- rising dissent or discord in policy approach? >> right. right. one of the key factors that's usually discussed in relations to china's interactions with north korea is the conventional view of north korea's still very strategically important as a buffer state. and it's usually discuss inside a binary sense.

some groups believe it is still pivotal as a buffer state to the chinese, and others view that as no longer important. i don't think it's so black and white. i think one way to view it if you listen to how think tank analysts and those who follow a saying in china when it comes to north korea, those who know don't speak, and those who speak usually don't know, but within those circles it's almost like a pie chart of different factors, and the proportions are changing over time. .. china. so those possibilities are best

mitigated by preserving north korea. the important point you mention is a different chinese policies, that's true. one way we see that is the periphery, the frontier economy. so the periphery of chinese have much more in common with the periphery of north korean neighbors of north korean neighbors ended up revealed chinese do with beijing. so it's counterintuitive. is still a tendency to view china as a monolithic entity, as following a master plan and having this strategy for everyone to be in line with. while the goal of sustained economic developing is universal, there's vibrant debate in china how to do that. so you have those who stick by the state capital small and others who want to reform. but both of them are aligned in the goal of maintaining stability in china. but as it pertains to know if korea, another phenomenon that is new is large-scale monetization of relationships. so those of the frontier of up revealed chinese, because the chinese provinces that are near

the border with north korea, they are the focus of very high level consideration how to close the gap between the spirits of a given a lot of leeway. they have a much more autonomy than one would imagine. there's an interesting relationship. senior party officials at the provincial level are extra and powerful individuals, and so when they have certain policies and certain measures in place, they are not easily forced to abandon those policies. and i think that perhaps maybe one of the causal reasons why in the period at the been sanctions increasing sanctions you see reports of trade continuing. in some cases business as usual. as much as we have things are being held up for inspection or the curtail of oil ships.

>> given that, tell us about this ongoing study that you engage with on sanctions and the nature of border, and what that means speak up financial sanctions right now is the primary policy tool that i think many countries and international organizations are using to deal with north korea. if you think of it as a medicine, it is being overprescribed right now. so my focus on this research topic was, what is the real impact of appointing financial sanctions. the policy definition is that racist transaction but it makes life very difficult for north korean trading companies and north korean interest to do business, to do their activities. and the hope is that in doing that you change the environment for their decision-making and also they will see the path of negotiated settlement as being much more viable they continue along the path, further nuclear proliferation, engaging in that activity. >> but not just nuclear

negotiations. there are other illicit activities were those measures will be lifted and those a list of activities, but the core question here is what are the unintended consequences. some of our goal in their research looked at the growth of private companies acting as middlemen for north korea trading compass out of me cases impose was sanctioned. with a type of transaction there are three key points. one is that increasingly the transaction are happening inside china and the chinese national economy. there are heightened levels of commission fees at private chinese countries in a demand of north korea trading companies and the prices of certain items are also very high. that's not new. in other cases where we've seen application of sanctions that's usually the impetus for the growth of underground economies and so forth and they create

issues. what's different in this key is that we're globalizing chinese economy. and by that i mean foreign companies no longer just export through chinese market. they are setting a production facilities inside of china for the chinese market. and with that the north korean state trading companies longer would have to go to the four corners of the will to procure or sell high valued items. they have to contract to the private chinese company. the bottom line in all this is that sanctions lead to private chinese companies demanding higher commission fees to do a translation for north korean state trade country. that in turns attracts more sophisticated and well-connected private chinese companies. so the point that in practice north korean state trade companies have the opportunity rich these middlemen. that is a function that didn't exist before. this activity is increasing in an apartment where we see the application of our financial sanctions, where there's an inversinverse relationship thati

think merits much more research spent if you're in north korea trying to purchase, for example, german agricultural equipment from china, that may be built in china, that is a definite possibility regardless of what the german parent company might think about for the enforcement? >> that is i think a growing reality. germany companies come european companies and as much of those were involved with things like industrial equipment, manufacturing what not, north korea state trading company in many respects no has to go across the border, engage with private chinese company on a contract, they go so for us to take out insurance on the transport of whatever merchandise that they purchased. so it follows legitimate channels in a way, but the key point is that when the private chinese company goes to the european company to procure this industrial equipment, the european company believes its sold something to a chinese company. so this is a type of activity in

this particular instance i think has implications in terms of cooperation. but in other areas in terms of the band luxury goods, as you have living standards and wealth increase in some parts of china, the luxury case of the elites in north korea so again across the border, it is relatively straightforward. >> let's move to the forum where the sanctions, the united nations to get a council and the most recently we've had security council resolution 2094. does the chinese agreement on this mark a departure from past behavior, is china shifting through its permission in the security council and not blocking or vetoing resolutions? >> in one way i think this is a pattern in response to the nuclear test in 2000 the second

in 2000. china court made on those resolutions as well. there's about three months of coordinated statements, beijing and washington, but the three-month period, the honeymoon period usually doesn't last longer than three months. so we see a reversion back to some of these practices where you see the commercial type deepening. and not to say that the north korea state trading company is operating in china are the main reason for this but certainly if you look at the broader context, it's interesting to note that north korea, china trade is growing at a pace that far exceeds interkorean tray. while inter-korean trade has been held up for different measures and response to provocations in 2010, even just looking at the china-north korea trade, and about late 2008, the nature in which it spiked is interesting because in a first since those are underreported figures. i think the chinese government is sensitive to appear to be

doing booming business with the north koreans so there's a tendency to under report to the fact that you see this high rates at high-growth figures, you have to take with a grain of salt because the reality is there likely much i. the other factor is with that you see the north korean entities piggybacking off of transportation, electrical infrastructure that exists in many parts of china. this is a coping mechanism. i think there's always weather turns would be this economic reform or not. the brutal reality is -- even did a very modest economic reform, the absence of transportation infrastructure and electricity infrastructure make some of these economic reform initiatives more of an academic debate. >> okay. let's give it a bit from china to north korea come and do what you just said about that, given what you said in terms of timeline, provided from the early 2000s, given the relations from 2009 through 2010, and last year, where do

you see kim jong-un consolidating relative to china, his uncle was there during transition period, and that was seen as a marker. the chinese sent a delegation went kim jong-un formally rose to power, and are supposedly fairly tight indications back and forth. and then later this month next reported a meeting of the central congress party and pyongyang, where they may possibly be promise of some sort of economic reform package that is being suggested. so how do you take all of this and i just that relative to north korea's look back at china and what it is seeking? >> right. might early take on it is that with kim jong-un having

successfully gone through leadership succession process, and accelerated one, essentially being cocooned by senior militant and party officials handpicked by his father, we're not in the spirit of power consolidation. it's an interesting base because you seek the removal of the very senior military officials that his father put in place. there seems to be a rebalancing where it's not a complete the many ways in of the military, but the redistribution of the economic pie in the north korean sense were economic concessions at the north koreans once monopolized, in some instances looks like there's bring them over to the party site and the cabinets i. i think those institutions if you go from institutional perspective the reason why that is made significant is that the party in the cabinet are really the architects and want to try to do something by way of revitalizing light economy. light economy been perhaps one of the earliest ways to turn around some of the consumer benefits that people in north

korea me enjoyed. that being a game plan, so with that as you mentioned with the announcement that there's likely to be a party gathering, meeting of senior party officials, and within the party, does the village of the central military commission, some are spent doing we might see jang song-taek a sim a formal title related to the implementation of modest economic reforms. and that i think if you look at the progression of what his father did, what kim jong-il did, that accelerated a visit to china and the nearing of the building between the two parties has both country and both parties -- processes, i think is the on putting the personnel and having different means of production and different sources of revenue from economic concessions under this effort, you see an alignment of stars. not to say that the outcome is guaranteed but it looks like

more kickoff. the fundamental difference about this effort from the july 2000 economic reform efforts, this one seems that a lot of backing from the communist party of china. the interesting relationship there is if you look at the ambassador, the chinese ambassador, he's not a career diplomat. is a former vice minister of international liaison department of the communist party of china. so the relationship between the two parties is at a level where you have direct connections, doesn't translate into any decisions and immediate results but it's an unprecedented and interaction. this is the into reaction that is continuing even though we have the heightening of tension of a military side that in many cases is not precedent did in its scale and scope. you start to wonder about which sphere israel's and which is an

allegiant. i think we see multiple playing out at the same time. how those are managed though becomes the crucial tens of leadership. >> isn't this, john, a possibility that the chinese are looking at this sort of military buildup, the missile test, the nuclear tests? are there concerns about accidents, mishap, you know, a flareup in tensions? if you're a military plan in china, what are you thinking about? one would tend to argue that china is the loser in this situation. >> which unique about this situation is that a thing for many of the chinese military establishment, it's not new. they read the tea leaves from 2010, and the concern there was not the north korea would trigger an escalation but it was that south korea would trigger an escalation. the chinese thinking of the sources of escalation, it was counterintuitive for the many outside, but right now the south

korean military has a new doctrine called proactive deterrence that was flexed out after the 2010 provocation. in its barest forms it means if we were to attack south korea again, there wouldn't be a proportional response from the south korean military. it would trigger the destruction of the north korea command structure to another bishop or is decision guided missiles would take up the statue of kim jong-il and kim jong-un. so it's very graphic in terms of practical deterrent. for the chinese, i think the concern is what proactive deterrence would it mean in an operational sense with the south bend build control escalation, which i think from a melted professional testing were of an academic debate rather than an operational military discussion. when she trigger this type of exchange of fire, escalation, it will be like a quick fire to dry with it would happen very quickly to the part where you would have response time. and added to all that, north korea has walked away from the military hot line.

so if you think of the situation and try to -- i think the chinese doctor plan is again, the concern is south korea, but from a western perspective it's north korea playing th a game of chicken. whichever camp you're in, the story that is told by thomas shelley in terms of, if you want to win a game of chicken and you're in one of the cars and your adversary is another, the most clearest way to send a signal of your cities intent is to rip off the steering wheel and throw it out the window. so from a chinese perspective, a it kind of looks like that but from the u.s. perspective, south korean perspective, some would argue that walking away, north koreans walk away from hotline constitutes that kind of bar. it's a very dangerous situation in that you misread what one of the parties has done, then your responses are calibrated perhaps to erroneous diagnosis. >> my last question before you

before turning to our studio audience is to ask you about the implications of poor seoul as you just alluded to but it's been three years since the sinking of the -- there have been observant as in so of the 46 centers in parish. two and a half years since the shelling of the ivan. that certainly concerns about activity again. what type of alignment does this pose for the president who just assumed office, and secondly what does this say for washington which has had a fairly muted response, has been cautious, has tried t to remind north korea that's been invited to take a peaceful path. but what does it mean in terms of u.s. policy as will? >> to start off with, i think one reading of what north korea is doing right now, this is another reality, another path that is happening concurrently. north korea is determined to become a full-fledged nuclear weapons state. so not only in terms of rhetoric

and propaganda, that means nuclear warhead and making it to the proven delivery system. and with a full nuclear weapons decision, looks like the drinking plan is then to invite the u.s. to negotiations for nuclear arms control. and embedded and that is a nuclear minimal deterrent, giving up the rest for concessions from the united states. that is a set of conditions the united states won't even come close to touching. it's denuclearization and that's it if it were to come to decision point about restarting discussion. so that's the north korea piece of office. it puts the united states and south korea in a very difficult position because in the midst of that, i think what were seeing play out in this party relationship between a chinese and north koreans is what i refer to as beijing sunshine policy. the sunshine policy is a

reference to what the two progressive governments of south korea did, but the real emphasis on the chinese characters. the chinese characters, the major one that i referred to earlier is the fact that north korea state trading company are engaged in economic development -- and shiny circles inside the chinese national economy. even at the height of south korea's sunshine policy south korea's sunshine policy does south korea's sunshine policy does not want to know screen state trading companies operating in south korea. yet we see almost an open door policy on the chinese side. the other characteristics are quite different from what the u.s. and south korea can offer. and one is something that exceeds a positive security assurance which is to go to the defense of north korea if it is the subject of an attack. attack. there was a letter the hu jintao had sent to kim jong-il saying that if north koreans trigger a military confrontation on the peninsula, they're responsible for the trigger, reportedly the letter said that the chinese would not come to the defense of north korea in that instance.

but the bottom line of beijing sunshine policy and one of the core characteristics is regime survival and a guaranteed in its confirmation at least of the view that the party of china will help the workers' party of korea revised essentially. in contrast, the best that south korea and united states can offer is a package deal and the security front that includes a negative security assurance, which is a promise not to attack the north korea. north korea is a mistake right now whether it's no longer sufficient to what they need is assistance to help the regime, help the party get on more stable grounds. so coping mechanism righ right s a package of a lot of the means of production from the north korean side, the free trading companies operating inside china. that is to buy time as hopefully they'll be able to start some very modest economic measures inside of north korea. so you have a configuration where those on the bars, those are the objective metrics that

new south korea version of the north korea policy would have to measure up to. and are the continuation from the united states? again that's another bar that it has to incorporate. and this bar did not exist even say five years ago. so it is a new element in the northeast asia. spent and how does sold relationship with beijing play into that? i know there's some debate about the first visit to the united states with china, the delegation that president park sent on an election to beijing. how are we balancing that part of the relationship? >> i think those efforts and south korea can be predicated on a binary view, the importance of china's south korea relationship. and if it's viewed that way from seoul, then i think that neglects the chinese approach to what i referred to earlier as a balance into a strategy. so it looks like the south koreans are putting in front of

the chinese a choice, it's us or north korea. but from the chinese, the longer-term view is that it would have durable stability in the region is to have rebuild china and north korea relationship to the chinese perspective on the china's south korea relationship is it's a vibrant children to the economic dependence and incredible benefits that both countries have been able to derive. that china and north korea relationship is a toothpick. subsequent have a architectural sense to stable pillars on which they will have this edifice that is their balanced strategy, the party right now is to rebuild that. and so for them it's not a choice, choosing one korea or the other. it's the necessity to stick to this game plan. i think it will be even if there is another limited conventional exchange, hopefully it will be limited and contained, we will see the chinese sticking to the game plan as they did in the aftermath of the propagation of

2010. >> john park, thank you. with about 20 minutes to turn to questions were audience. we would ask you to please step forward to the microphone here. identify yourself, and your affiliation. if you would like to queue up, that's fine. and by speaking into the microphone, it helps those who are streaming liberia question, as well as our c-span viewers. thank you, please. first question. >> [inaudible] >> speak up just a little. >> [inaudible]. >> from columbia. two-thirds of the people polled in the rok favored the development of the south nuclear deterrent capability. have you heard any response from either the north or from china regarding this development?

>> sure. from i think chinese, so the analysts there when we look at the polling data, this type of view coming from south korea in public, as you mentioned two-thirds in this report. i believe you are referring to the asean survey. but also south korean elite, and their views of south korea, the elites viewed as the reintroduction of use tactical nuclear weapons in terms of the joe south korean population usually the survey question and response in terms of south korea developing, its nuclear capabilities. china is concerned. there is a concern among i think chinese academics a virtual proliferation, and not only south korea but japan as well as north korea continues to make progress. they have a ways to go, but they're definitely making a forward moving in terms of conducting nuclear tests that are yielding much more and this movement towards miniaturizing

warheads. and missile technology where in december of last year they pass all three stages and put a crude satellite into orbit. but there's usually discussion of china having to do more now in order to prevent the reality of a nuclear north korea on its border. and that could be a huge headache for china. it could be a potential strategic threat. as some chinese analysts say, that certainly is not a desirable outcome, but it's not an earth shattering new development. is a good look china's western and northern borders, they already live next to nuclear states. you know, certainly north korea has the reputation of being an unstable regime, but it's not a decision point, constitute a tipping point. so from the perspective i think their nuance is that, make the picture much more complex. >> first of all, that was a terrific presentation, and you want to be congratulated for

that. [applause] >> to questions. first, the logic of what you were saying is, after the sanctions resolution to the u.n. in which china and the u.s. got together, the north korean actions have been designed to drive a wedge between them. if so, isn't the logic of the u.s. position than not simply to reassure our allies by b-1, b-2 bombers, but to actually move toward china, to damp down the concerns of containment as a result of a pivot, et cetera? and dragon north koreans a little bit into concern? that's question number one. question number two is, there's a long history of, korean history here that you are more for me with probably than i am

and no korean leadership wants to be totally dependent on any one neighbor. so isn't the logic of the north korean position to reach out to south korea at some point and it's obvious the something that's interesting to seoul, because they don't want to see china be the dominant influence of the north? >> thank you very much, lee. the first one, the u.s. efforts to ally concerned about containment our long-standing. but what's different now in a macro sense is the u.s. is still engage in its asia-pacific rebounds a. first call a pivot now the call rebalancing. the chinese do this as really nothing more than perhaps the biggest piece of evidence that the u.s. is coordinate with allies and friends to contain around china. so even assurances over the b-52

and b-2 bomber flights that are targeting over with -- only north korea, targeting the north korean threat, those discussions are at the commuted by the broader strategy concerns and that the reassurances over asia pacific rebalancing. with respect to your second point about the u.s. efforts to coordinate more closely with china ending with north korea, that being the clearest signal address the most effective way in the with north korea, i think there is a desire at the highest levels in both united states and china to do that. but the different types of internal politics and different interest groups that both sets of leaders have to deal with making that very difficult to do. and so if you like it from that angle of, you know, if that were to really work out in a terrible sense, that would require the u.s. to be more flexible in giving a little more leeway to the chinese to do what they're

doing, these are the north korea. the chinese showing more tangible results that in some cases their everybody mesh. those types of metrics are so politicized that it would be hard to convince skeptics in those respective camps. so while on paper that would be the most effective way and perhaps even desired way to implement a new approach to dealing with north korea, i think the manifestation -- with resolution 2094, it's always a question of durability. these efforts are usually not sustainable. again, more than a three-month period. >> john, i would making the assumption that china really has as much influence in yongbyon that we think it does given the series -- how do you read that in terms of impact? >> it depends on how you define influence, and forming influence

the notes the ability to affect a certain desired outcome. and in this case that the chinese want a system that is crystal clear, a message to the north koreans, i think would be shutting down the north korean state china companies in china, and also seizing what are known to be north korean links, bank accounts in china-based banks. those who be completely unambiguous. for things like shutting of oil, and the past we have seen certain chinese constituencies telling the u.s. this is our way of demonstrating inside influence to compare some of the chinese signaling to the north koreans technical difficulty, technical difficulties in the pipeline. we will boost up production and shipment in future months. so it's hard to know exactly what was behind something like a curtailment of oil should. so again, the opportunity to send clear messages are there.

i which is objectively lay those indicators out there and observed reports to seek anything comes close. >> thank you. please. spent i think again you hit a homerun in covering the waterfront. i would like to applaud you for the. my question has to do with the fact that as you mentioned we are in uncharted waters nuclear wise in this wise, and given the hostility between the two korean machines, to what extent do you see the security of the korean peninsula devolving upon the u.s. and china? and to what extent can we expect that china could rein in john gang, -- pyongyang or can be made to do so? what is happening is you've got something like a beijing to step. at the u.n. sanctions and then you have the return to six-party talks, which have not accomplish anything except some statements for 10 years. so are we in a cul-de-sac so to

speak? so if you could address those two points, to what extent is secured on the korean peninsula de facto in the hands of washington beijing, and to what extent do the elites in those capitals understand that? and, and as a corollary, can we expect that beijing can put the pressure on? what i see happening is the possibility within a few years of icbms on the launch pad, you know, with a miniaturized nukes on the top, and then what? >> thank you, john. i think when you zero in on the china, the u.s.-south korea relationship, terms have been elevated. the u.s. and south korea announced a contingency plan where the u.s. would be shoulder to shoulder with south korea and respond to another north korea attack. that's i think again, try to

increase the fear of that particular deterrence stance. the delegation of authority to local commanders to respond, the dave courtney between the blue house and making sure everything is in lockstep, given the reaction times and so drastically reduce, that if there is a legitimate attack from north korea that's been unambiguously from north korea from the local commanders on the south korean side can respond and that in practice would be a trigger for the escalation on both sides. that is a very alarming development, and that i think means that an operational system even if the united states want to have some kind of restraint influence, even discreetly to south korea, a time just wouldn't be there. and that i think is something that there has to be much more thought given to the. on the china-north korea side of things, you see a situation

where the chinese shuttle diplomacy and 2010 was fascinating. because you had the rok military advancing to the north korean militarmilitary to the channelsf medication they would to a live military exercise away from territorial north korea in to waters. the north koreans said don't do that, those are our territorial waters. shells landed in those waters will be seen as an attack. north we went ahead with it. there was an exchange leading to the death of south korean marines and civilians. then you saw a very bizarre quiet period, when the south koreans announced that they would complete their unfinished artillery exercise. that fell in december 2010 and as well as up to that date, both sides were getting ready for an escalation. and we saw locke, because there was about a day of heavy fog, and so the dates for the

uncompleted artillery exercise was pushed forward, farther back. vineyard the russians invoking emergency meeting of the u.n. security council. but in all but the amazing thing is that china cents, ahead state counselor to seoul and pyongyang. and install you see this haphazard trip, the stores are that the chinese delegation with a land console called the blue house to arrange a meeting. 's issue a sense of the urgency. but the meat is in direct contrast to the meetings that they had and pyongyang were rather than a strong message being sent to the north koreans, use of these photographs of kim jong-il holding hands and the caption saying gifts had been exchanged and so forth. so that shuttle diplomacy and that negotiation that the chinese conductor with both south korea and north korea at the time, the full story is not have that yet, but that took

time. and i go back to the north koreans walking away from a military hotline, and now things happening at a pace where i think those types of dampening effects from beijing and washington, we just won't have time to have for those capabilities. >> i am just an ordinary member of society. i was thumbing through my old copy of china crosses the arrow, and his analysis of a buffer state of north korea still holds despite the changes that you have outlined. and i think the chinese will not abandon north korea under any circumstance. and if you think the american policy is really whistling in

the wind as far as that is concerned. i have a question with the example that was brought up about the north korean trading companies buying german equipment or doesn't it logically follow that they could also buy american-made equipment? and so, where does all the sanctions go, hence the u.s. was supplying them? i just think computer technology because the north koreans have proven themselves especially now, when they have a program of nuking major american cities, that they are not very, that they are technologically savvy. and ironically, perhaps the korea society may have had a hand in this sense they have a program up in the maxwell school, bringing north koreans over and introducing them to computer technology.

and my third -- >> the maxwell school program is separate. >> but -- >> and will have to wrap it up because we -- >> the last is by closing down the communications with the south, the u.s.a. could become especially with the b-52, brings back memories of the b-29s that flattened north korea during the korean war. and that's why you have an escalation of threats and menaces now. of u.s. policy is very dangerous i think i'm in my opinion at this point. >> any thoughts on that? >> i think all the countries are involved in a very dangerous situation. and so it's a response in a response cycle. and while coming in, i mentioned u.n. security council resolution 2094 seems to be the current

trigger, i mean, if you want to look at all of the different triggers and the chronology, there's a big debate of what, what was the original trigger? one way to fairly assess how things are going right now is reaction feeding into reaction. 1.1 at the zoo in in terms of a technical analysis is that when the rocket opponent, the booster rocket fell just west of south korea, the south korean navy salvaged it and were able to look at the various parts of the component. they make you very interesting outcomes of that study. one is that the rocket capabilities look like it was -- and the welding and things like showed a type of resourcefulness that may have been the most advanced way to do it but it worked. but the second time he was that the technical bonus for guidance systems and what not was deemed not to have been able to have been produced in north korea as

the north koreans claimed and it was more likely secured in places like china through private companies and maybe other agencies. so as not to say that sanctions should be abandoned. it's more of, you should be viewed as one part of a larger set of measures. if there's too much of or reliance on national sanctions, then these other things will continue at pace with the policymakers made legitimately think that sanctions is taking care of all of these things. i want to mention that point that in terms of financial sanctions, there is not immediate answer that .1 way or another just a financial sanctions will lead to vastly different situation but there has to be this comprehensive approach to think of different policies. >> thank you. one last question. >> i'm also a member of this society. nothing more. i'm wondering about, that is, the possibility of using

incentives rather than sanctions to encourage the chinese companies to invest in north korea, which was in the early 20th century noted for its hydropower. and china increasingly is having labor costs problems. and it seems to me that everybody who else is interest interested, whether they be russian or japanese or american, or south koreans, stand to gain big and since everyone, all the emphasis on sanctions, there's quite a way to go. spent hydropower, labor? >> on the labor part there's actually an estimate that there are about 80,000 north korean workers in china. and so at the very point you mentioned, labor wages, labor shortages in china is a natural synergy to usher bringing north koreans workers.

setting up chinese factories inside of north korea is very daunting it doesn't the lack of electricity. the fact that you have to build all the roads that would lead up to the facility. it's much more than just starting up a factory or a production line. with respect to the hydroelectrical component, tremendous opportunities there, as there are tremendous opportunities in the mining center. if there's any clear evidence of chinese investment it's in the north korean mining sector. there's been an increase of north korean export of gold for china, but there's there is an interesting practice. this is where i emphasize again the important and significant relationship between the chinese periphery and the north korean periphery. key parts of the chinese side actually, they have call as well. they are coulton's be better quality. there are money that and shipping it to other parts of china and getting a good price for. they're importing cheaper korean

coal. and those officials and the private sector people on the chinese side making a tidy profit from it. so it gives you a sense of the sophistication of some of these interactions but your basic point about incentives in the sense of chinese investment in north korea, it's been an arduous process for chinese countries doing business in north korea. not only for the physical difficulties of these infrastructure gaps, but also as the report, north korean counterparts changing the terms of immigrants and what not to the point would have a long list of chinese countries who walk away from these joint ventures and deals inside and on. >> thank you. i like to thank all of you in our studio audience here today. i would like to thank our viewers at home. i would encourage you to please visit us at korea society.org for all of our programs upcoming, as well as information on membership. we would love to have you membership of come as a member of the korea society.

please help me in thanking john part of harvard university and mit. [applause] >> [inaudible conversations] >> here's a look ahead. next, discussion out international can be applied to cyberwarfare. >> later this week, negotiators meet in kazakhstan for the next round of talks on iran's nuclear program. today, the brookings institution

host a preview of the negotiations. speakers include two former officials of the european union and the u.s. national security council. we will share their expenses even with iranian negotiators begin watch live beginning at 10 a.m. eastern over on c-span. spent monday night on first liens, dies after month in office. she passes which is a year and a half later. angel it had a becomes the president's second wife. scheduled i think of as the madonna of first ladies. she loves publicity. she had actually pose as a model at the time when that was needless to say frowned upon. she was known as the rose of long island. by all accounts, was bewitching, she certainly bewitched the 57 year old john tyler. who married her, and she loved

being first lady. she had the job for less than a year, but it wasn't julia tyler who ordered the marine band to play "hail to the chief" whenever the president appears big is also julia tyler who greeted her guests sitting on a throne on a raised platform with purple plumes in her hair. it's almost as if she receded to the more queenly role that martha washington had deliberately rejected. >> we'll include your questions and comments about these 31st ladies by phone, facebook and twitter tonight live at nine eastern on c-span and c-span3. also on c-span radio and c-span.org. >> up next, a discussion on applying international law to cyberspace including cyberwarfare. this event comes following the creation of a manual by international law scholars on how military warfare laws can be applied to the cyber domain.

atlantic council hosts this hour and 20 minute event. >> i guess i will begin by remind you that i'm here in my private capacity. i normally forget to say that but in light of all the press accounts over the past week or so, i'm anxious to tell you i don't represent the war goes, the china government, estonia, my wife's french but i don't represent france, nader or anyone else, but just here as a scholar. me tell you about how this budget started. i shall we begin to look at cyberspace and the implications for warfare back in the mid '90s after united states world neighbor called. the first conference on international law in cyberspace was held at the war college. held in 1999. but then what happened is 9/11 and all the international lawyers turned their attention from cyberspace onto countertecounterte rrorism. myself included. we are looking at issues like linking across the border, when can you conduct drone strikes, what's the basis for being in

iraq and so forth. then, of course, as you know in 2007 there were massive cyber attacks against us. madam ambassador, thank you for coming here today. in the following year there were cyber attacks that took place in the conflict between russia and georgia in 2008. so quickly as attention focused back on cyber. but what the international law community found was that no one had been doing doing very much think about the rules that would govern cyber warfare or conflict between states or states and nonstate actors in cyberspace. at any event, the ccd seelye was established in estonia and they hold a wonderful annual conference that will be dashing held this june. you should go there. asked me to speak at this conference. but about a year had passed and i told is very nice estonian woman, thank you for inviting me to speak at this conference, however, this cyberspace thing is boring me. all the lawyers come together and they say, bob, this is hard and i've got all these questions. and other academics are trying

to develop a new three but try to answer the questions. so i'll tell you what, you can a call when you're ready to start answering questions. for those of you who know her, she's a very aggressive young person and she called me about three months later and said okay, we are ready. ready for what? ready to do a project. what project? anything you want. so they really, estonia and the nato center gave us a blank sheet to write this project on. it was an important time because as within the project, cyber took center stage it wasn't just estonia and georgia. if you were remember stuxnet happen, for example, during the project the guy rings claimed they brought down american drones during the project on and on and on. so it was a rich time in which to look at the issue. now, the center of excellence allow me to bring together a team to there were 20 from around the world. there were scholars and practitioners. there was, of course many that were not included. and overtake it onto the scene,

he had to be first rate international lawyer, first right, top of the few. but there was another criterion. the other criterion was that you had have been a legal adviser. because we have no interest whatsoever in producing product for the academic community. what we wanted to do was produce a product of legal advisers at the cia and department of defense and the state department and the ministry of foreign affairs and the ministry of defense and so forth, a product that they could look at as they tried to sort through the issues. because this group of 20 people acting in the private capacity was very, very, very sensitive to the fact that we don't make law. scholars do not make laws. states make law. so what we were trying to do in this vacuum, an and this enormos vacuum come over try to do is create a tool that many other folks in his office could use in their private practice. the problem was that the task was vast, and we had to try to

decide how we're going to nearly. i will tell you what my going imposition was that we're trying to recommend that only dealt with the youth in battle, also known as the law of conflict and international maritime law. but a number of the other experts say we need to do more because what state you're really interested in is when they are the victim out of the blue of the cyber attack. they are not just interested in what can happen on the battlefield. they're interested when, estonia expensive 2007, their interest in situation to which they are suffering massive cyber attacks, what can they do in response. so we brought into another area called the international law that governs the resort to force by states can when can states lawfully resort to force, when can they defend themselves, when can they act pursuant to a security company the. then it was very interesting. we had these two topics and we started off and quickly became apparent that we're going to have to deal with a number of other related topics if we're

going to understand these two bodies of law. so folks have a look at the manual today, you will find sections on sovereignty and jurisdiction. you will find sections on neutrality, became their very important we had no intention of going there. neutrality became very important because during an armed conflict, cyber operational costs through neutral territory. we look at occupation, something none of us without would be relevant at all but it turns out there are fair number of rules of occupation that apply in cyberspace. the next thing we needed to decide once the kind spoke the project is we wanted to decide what type of product we wanted to produce. now, this is not the first manual that's ever been done. in fact, the brits in the 19th century producing a new called oxford manual. there are two of them. there had been recent and manual on air missile warfare under the directorship of bernstein, president emeritus of tel aviv university. i was one of the experts that helped draft the.

so in our field we knew that these manuals were something that kind of took old, that were of use to legal advisers. there was a problem. in the project which ran over five years, harvard project, the law had to some extent already formed. in 1923 did in an effort to write some of the additional protocol for the geneva convention of 1977 treaty, it had some law that talked about a warfare. but here and decided context, there was nothing, not a word, not a single word. so the question was is how do you write a manual, and there doesn't appear to be any law on point? but, of course, we were law professors primarily, so we were not frightened by this prospect. and so we set out to write a manual. what we ended up with was a manual that consists of a block letter rules but as you opened up you will see that are literally black letter rules.

state aid may not use force against state be. this includes cyber force. those rules -- every member of the group had to opt into those black letter roles. but we quickly found that there were lots of interpretive problems. what does come and i'll talk about that in a moment, what does the use of force me? we can all agree probably the use of force is a lawful unless it self-defense, or pursuant to secure the council. what does that mean in cyberspace? and so the bulk of the manual, and, indeed, clearly the most important part of the manual is down in the commentary. because we decided we can't possibly answer that for states. what we can do is in a very rich environment with lots of smart people, we can think through those problems and give the legal advisers other governments around the world options. so for example, in terms of use of force, we discussed at length ever come up with a couple of approaches to the use of force. same with self-defense.

same with attacking him assist with gary brown here, same with attacking assets that are marked in cyberspace. we went down to that level of granularity. but it is for the audience you should understand it is in the commentary that the meat of the project is to be done, not in the rules. the rules are an exception. now, we brought together as i said 20 people. i forgot to mention there were three individuals who are not there in the private capacity. the first was gary brown, carl represent the initial committee of the red cross, but then representing the united states cyber command. when you decided that have a great capability in the world. we want them to be in the room in their official capacity. the second was nader. what are represented from allied command transmission. why? because nato has robust concerns in this area and, of course, they were funny our project. and didn't the third group that we invited and was the international committee of the red cross. in their official capacity. we wanted a red cross observers do everything we did.

why? because the red cross are "the guardian's" of the geneva convention, and to be quite frank i work with the red cross for a period measured now in decades, and they have probably the best lawyers in the world in one small place dealing with this tiny topic. so i wanted to bring their brains into the room. however, they did not get to vote on the black letter so they were there throughouthroughou t. in fact, they engaged in drafting their words, not vicious fights, from the fight over this and that that we often get into what gary had to say from the uscybercom perspective or what one of the reps had to say. however, at the end of the day when we came down, are going to adopt this rule, the objection of the other three observers did not count. we had to get unanimity only from those who were there in their private capacity. now, let me move to some of the tough issues. there are lots of tough issues. the first hurdle we hav had to t

over was, does international law, the law that exists today, the stuff you all have studied in moscow, does it apply in cyberspace? we quickly concluded that it did. and i know there's a debate over this, but the decision that this body of law applied which ends among the experts, and also unanimous i would say among the observers. this is of course the position of the u.s. government has set forth in the president strategy for cyberspace. this is the position of the european union which we set forth in a new strategy document. this was the position adopted by the international court of justice in a very famous advisory opinion, nuclear weapons, which they said the law that existed applied to nuclear weapons in the nuclear weapons came later. took the same position in cyberspace. this is the position of the law of armed conflicts, humanitarian law which reports on the weapons received a legal review. if you think about that for a second, if the law doesn't apply you would have to do a legal review of new weapons. you are clearly rethink and

against standards that are already in play. the our first hurdle was -- we decided that all of international law would apply in our mission would be to figure out how it's applied. then we turned to the first major topic, which was the use of a bella. this was very, very tough. it is without the slightest doubt the most unsatisfactory part of the manual. why is that? it's a body of law that is ver, very fuzzy. it's about one states can use force but you can probably imagine that states like to retain their discretion in this area so states are not always very clear about what the legal standards are. the very first rule we looked at was the role found in the u.n. charter, article ii, subparagraph four, the use of force will. state a. may not use force against state b. a very separable. the problem was we had to determine whether or not, or when cyber was a use of force.

clearly if state a. bonds state b. and that's a use of force. if the warships of the united states navy shelf acreage and that's a use of force. but what about cyber? with some issued electronic that you? well, the problem was we couldn't simply adopt an approach that said well, you have to break things or her people. it has to be the same effect as kinetic operations. and the reason is because the national court of justice in a very famous case called nicaragua, forum and its paramilitary activities, in nicaragua they had looked at this very issue and international court of justice had decided that the army and training of guerrillas was, in fact, the use of force but the army and training, not send training, not think about your position of merely arming and training guerrillas was a use of force by one country against another country. which told us that we simply could not adopt a principle of law but said it has to actually

be genetic in nature. at the same time we look at the negotiating history of the charter and the negotiating history made it very clear that they were not talk about economic and political warfare when they set forth this norm in article ii. so what this meant was it was less than what you think of as a use of force but it was more than simply high ordered coercion. we eventually come again very unsatisfactory, we eventually said we can't answer this question that it's do or. the best we can do for legal advice is not give them a bright line rule, but rather inform them, help them think through whether or not their operations are likely to be viewed by the international community, their cyber operations as a use of force, and whether or not if they characterized the operations of another state as use of force, whether not the international community will support them. so what we did was we look at state practice and so forth and came up with eight criteria, which are simply indications of

how states may react to uses of force. the easiest one is severity. of course, if people are killed, that is the use of force. another one was measurability. if a cyber operation creates a fact that you can measure, you can say tax dollars are drawn from the treasury of the united states, that's quite the final. states are more comfortable calling something use of force when they can say, because it had the specific consequences. we look at the military character of an operation. and operation conducted by united states cyber, would be very different, viewed from the international security perspective than what conducted by other organs of the government. so we look at these eight criteria and we said these are some of the things that you may want to think about as you determine whether or not you want to launch a cyber operation without running afoul of the use of force, of the use of force

prohibition. now, the big question was about the use of force means your state it's an unlawful unless it's just that international law. the big question for states was what can i do in response. now i've been the victim of this, this bad cyber thing, can i strike back? and most of the law there is found in article 51 of the u.n. charter. it is the law of self-defense. and a loss of defense tells us that in the event that you are the victim of, and the term is important, armed attack, then you get a get out of jail free card with regard to your force response to remove you can't use force but if you're responding with force to an armed attack, a legal term of art, then you are not in violation of the norm. this presented a problem, and the problem was which is defined use of force, or tried to define and use of force, and now we're using a different term. and our query was do they mean

different things? is every use of force an armed attack? here we did of attempts of opinion. the majority of the group of expert, the prevailing opinion is that it was a higher standard. that not every use of force merits a forceful response in self-defense. and generally we came to conclusion that an armed attack is a cyber operation that causes destruction or injury of some, of some sort. i must tell you that this is not the position of the united states government. the position of the united states government is that the two standards, use of force and armed attack him are roughly the same. and the legal advisor to the state department, formal legal advisory, harold koh, has given a speech on this and it's reprinted in the harvard international law journal a line with my analysis of that speech in light of the tallinn manual. so it's an interesting play between her fester, and myself.

what we eventually came up with, as i said we're really look at situations where we're going to our people physically harm people and physically damage things. we unanimously ruled out of cyber espionage. we unanimously ruled that intelligent gathering can if your gathering intelligence, that sir is not an armed attack such that the victim state can respond forcefully. the big question we have is what you do with a situation where there's no physical damage and there's no injury, but the consequences are dramatic? and, of course, what i'm thinking about here was a massive attack on the economic system of a country. not only an attack against the economic cyber infrastructure but an attack that may cause a collapse of confidence in the economy. they are the group was split. we came to no conclusion. my personal view is that, in my personal capacity, is that we're not they get but certainly we will move in that direction in the next decade. 10 years from now if i'm sitting

at the table i will be telling you that economic warfare that is very, very egregious will be an armed attack such that a nation may respond with a use of force. i also want to highlight the fact that although the manual talks about self-defense, almost ad nauseam, i hasten to add that there are other things at stake and in response to cyber operations directed against it. my friend, daniel bethlehem, told me, i went down, i was a british professor for a while as you probably took my accent, i went down to london and met with daniel and did you have any views on the manual? he said the problem with your manual is, if all you have is a hammer, every problem is a nail. and so he quickly added a section to the manual. daniel was right. we quickly added a section talking about countermeasures which are measures that are

normally unlawful actions that you can take in response to another state's unlawful action, that it is below the armed attack aggressio aggression to d stuff is happening but it hasn't reached a point where you can call cybercom and say take out that state. perak measures are discussed to some extent in the manual but we will be in tragedy to put a addressing them in great depth because they are, in my view, they are the type of actions that states are most likely to engage in if they are facing cyber operations. then finally turning to the other body of law, the use -- the law of armed conflict, the big topic. the big topic. tuggers three years to resolve. and we get a lot of backroom negotiating in that resolution. the big topic was, what about the rule in international humanitarian law, article 40 of the additional protocol, which by the way we are not a party to, but we americans can we

accept this as customary law, what about the rule that says you can't direct military operations at civilians or seven objects, does that mean you can, during a war, shoot electrons at civilians tough? many of us with military backgrounds and that's crazy. we do that all the time. so we dug down deep or to the additional protocols and into state practice, and we came to the conclusion that when they said operations for what they meant to say was attacked. we said that in part because this treaty defines the tag and it defines it as an act of violence. so we said what you really can't do, and are expressed rose on this issue can't attack civilians and you can't attack seven objects and you can't attack hospitals, which then begs the question, of course, what is an attack? i just told you it's an act of violence. cyber is not an act of violence that it has filed and consequences, and so we said anything that harms people,

physically harms people or makes them ill or causes them serious mental suffering, and anything that causes damage, physical damage to cyber infrastructure, that's an attack and if you do it against civilians obvious to you have committed a war crime. however, you should probably find that unsatisfactory but i will tell you i did it. when we were talking amongst the experts. because my little voices telling me, golly, that can't be several. because you know, you can do all sorts of bad things with cyber during an armed conflict where shirley humanitarian law must stop the. so we had long negotiations and we came up with what we are calling him the majority came up, this was not unanimous, you find is in a comedy, with what's known as the functionality test. and we said, let's think about the word damage. you can't damage, you can't damage to civilian objects. well, to me damage, i'm sort of

a cyber idiot, village idiot in terms of cyber. damage means i got my computer here and it doesn't work and i can't get my 24 year-old daughter on the phone. to tell me what's wrong with it. it's damaged. it doesn't work. hence the term functionality. the majority of the group of experts said if you conduct cyber operations against cyber infrastructure not only against mike schmidt or any critical infrastruinfrastru cture, and it requires repair, then that rises to the level of attack and you can't do that against civilian objects or harm civilians in that fashion. i will tell you than some people, and i'm one of them, said i think it's even more than that. i think if you do something to the system and you have to reload the operating system, i would include that as well. so i would say probably a majority agreed with that as well. ..

>> what about civilians who are directly participating, hostilities is a term of art that you find in the law. and so we spent five years thinking about, and i was one of them, we spent five years thinking about the very issue of what about civilians on the battlefield. the conclusion that we drew was that there is no law that prohibits, no law at all that prohibits civilians from taking part in hostilities. but if they do, then they lose their protection from attack for

such time as they are participating. and so that's why you're hearing all this on the news. someone misread the manual, and they think we said you may attack hackers. no, no, we didn't say that. what we said is that if you're a civilian and there's a war going on and you're using cyber to attack, in other words, materially affect the military capability of one of the sides, then you're a direct participant, and you lose the protection that humanitarian law provides you for that time. so those are just some of the many issues we dealt with during the manual. there were lots more that i could talk about. i will tell you there are a number of criticisms, some fair, most not very fair. the first criticism is that we often say this reflects, this rule reflects customary international law. and the criticism is, golly, who are you to say what customary international law is? the international community of

the red cross spent a decade trying to figure out what customary law is. they produced three volumes of law, and then they were attacked by everyone. so who are you guys? well, that's kind of a fair criticism. this represents our view of where the cus mauer norms are, and we had reference to, in my view, the excellent customary law study as well as a number of other prompts like the air and missile warfare study which also sought to define customary law. second, no international representation. you were a bunch of listeners. absolutely right. that's because this was such a new area. so when i was putting a team together, i wasn't trying to put a team together to negotiate a treaty. i was trying to put real smart people together that had experience being legal advisers to try and figure out, take the best shot at what the law was. and so we ended up with the group we ended up with, which is not geographically diverse. and finally, the last criticism is that you guys didn't tell us what the law's going to be. you didn't tell us where we're

going. and the answer to that is, we never intended to. we just wanted to help you find the law today. where it is a decade from now, who knows? thank you very much. >> thank you very, very much, michael. [applause] thank you in a very brief time sort of laying the groundwork for the manual. so the rules of engagement for this afternoon is, first, let me introduce the panel. the panel is gary brown who is the deputy legal adviser. he's the regional delegation for the united states and canada of the international community of the red cross. as michael alluded to, he has held military positions beforehand. he served for 24 years as a judge advocate with the u.s. air force. he retired as a colonel. he's held a number of of very senior positions in the air force, and his final assignment was as the inaugural senior legal counsel for u.s. cyber

command at fort meade where he served for years. on his right is jason healey who is currently the director of cyber state craft initiative at the center on international security. jason is a board member of the conflict studies association in lectures and cyber policy. he's written a number of books in this area. he's a director for cyber infrastructure protection of the white house from 2003-2005 where he helped the president coordinate u.s. efforts to secure u.s. cyberspace and critical infrastructure. he also has had experience in the private sector at goldman sachs, and his career also has had a period of time with the united states air force. he's had a distinguished public service career and also served at the headquarters in the pentagon as a founding member of the joint task force computer network defense, the world's first joint cyber war-fighting

unit. i am harvey rishikof, i am the co-chair, with judy miller, of the american bar association national task force on cyber and security. and we want to foster events of this nature in the aba, so this is why when jason approached me to co-sponsor this, we were very excited about it. and the three panelists are all friends. i particularly want to thank estonia and the ambassador for being here as being one of the driving forces. and just to set the record straight, anna and i would say she's just charming and intelligent. so what i'd like to do, the rules of engagement will be i'm going to pose some questions to the panelists. they will respond. and then i'm going to open up the forum very quickly to gather some questions, and then we are going to engage in much more of a dialogue over the next 45 minutes because when i look out in the audience, i see what we call smees who will be able to

pose fascinating questions to the panel. so so let's begin, first, with jason. what is your sense of, your initial reaction after having reviewed the manual and hearing michael speak? >> well, it's funny, when harvey looks out, he sees a panel of, he sees many subject matter experts, and he's eager, and i look out, and i see a room full of lawyers, and i'm not really sure what to think. [laughter] so what i liked about the manual so much is, to put it in context, at the atlanta council we're putting together the first cyber conflict history book. so we're looking back over 25 years of how cyber conflicts have actually been fought. and then seeing what lessons we can take from that. and that's what we like so much about tallinn. say thid this isn't -- they said this isn't so new that we have to start fresh. and you'll hear that again and again. cyber so different that we -- it's all new. it's all different, so let's start with a blank slate is going to be the best way.

and if that were true, then we wouldn't be able to do the history. we wouldn't be able to look 25 years and find that if you took a cyber operator from 25 years ago and put them in a case today, that they'll find themselves in an entirely natural situation. it's just like you could take a fighter pilot from nearly a hundred years ago, from world war i, and have him with a fighter pilot from today from any country, and they're going to be talking to one another, they're going to talk about how great it is, um, to slip the silly bonds of earth, and they're going to get along because there's history. because the dynamics of air conflict haven't changed that much. and so we find when we look at history, the dynamics of cyber history have not changed that much or as much as we've been told for the past 25 years. so, therefore, it isn't so new that we can't take these things from the past and apply them. as a matter of fact, when we look at the dynamics of cyber conflict, we find the more

strategically significant the conflict, the more similar it is to conflict in the air, the land and the sea. so that it's not network speed. for example, the attacks on estonia, yes, of course, some of them happened at network speed. but if what doe neighbor of warfare -- domain of warfare doesn't the tactical and technical form of engagement happen very quickly? in air warfare you can get shot down before you know it in a dog fight. cyber conflicts themselves take place over weeks, months or years. where the most strategically the conflict, the likelier it is to take place over time. that has rules of engagement that you don't necessarily have to know how to shoot back very quickly, because you will have more time to deliberate more often than not, and it also means that things like the tall lin manual that say let's take lessons from other kinds of conflict and apply them are

going to be much more successful than we've been told. much more successful than the geeks have told us that, oh, they'll hand wave and say, you don't get it. cyber's different. and it turns out we think that is far less likely to be the case. you're also more likely to have warning time because the most streamingically significant cyber con floict are goings to happen with a nation-state, and they don't happen out of the blue. what happened in estonia, they had some indications weeks ahead of time. if you're in a dust-up with china over islands in the east or south china seas, you're going to be able to guess a couple weeks beforehand that you're going to be in a cyber conflict, because you can start seeing it coming. so, therefore, i'm very happy as someone that's been involved in this for 15 years, that's been looking back over 25 years of history that the tallinn manual has really started to take this

on. because i've been in too many conferences to listen to that cyber expert that gets up and says is cyber attack an act of war? this is an interesting question. and i've been listening to that same guy for a lot of years now. and you know what? professor schmidt started writing these answers along with many others, like tom wakefield and others, ten years ago. the article was '99. so between 1999 and now if you heard someone asking these questions and pretending to look wise, it's because they were ignorant of the answers that have actually been produced. so the next time you're in a meeting or a conference and you have someone that says, oh, is hiker an act of war -- cyber an act of war? cut them off and say whether they thought the tall lin manual got it right or wrong and pin them down. because this happens in law, it happens in too many other areas. so please don't let it happen

again, because now we've got the tal lin manual. >> thank you, jason. there's an air force mafia theme. so you should be quite prepared for a lot of wild blue yonder metaphors when we're discussing this panel. gary, you have been on both sides. you were there as an observer, then you've now joined the icrc, an international ngo. what do you see as sort of the project's challenges based on your particular perch that you now have? >> right. thanks, harvey. it was a great opportunity to be involved in the project because we were working on many of the same issues in our little cloister there at cyber command. and so it was very gratifying to join the project and see that some of the same issues were being discussed. and, in fact, one of the very most heartening things that happened when i joined up was to see as we were zeroing in on that definition of cyber attack, which is one of the things we had really struggled mightily

with at cyber com, i found that the definitions we reaped at cyber command and the definition in the manual were almost identical word for word. and that was so critical because for 15 years before that the united states really, i think, policy had sort of been frozen because we were burdened with this overly generous definition of computer network attack that the department of defense had put forth. and really it hadn't changed much except for a couple of words since the late '90s. and that made it very difficult. it made it extremely difficult to move forward because i think folks were reluctant to say that the international humanitarian law applies to this situation when we don't know what the situation is, or the situation is everything we do in cyber that denies, degrades, disresults or destroys cyber systems. that's a very broad range of cyber activities that would be governed by ihl. so there was a real reluctance, i think, to put pen to paper.

now since, just in the last few month the united states has come onboard much more strongly to say ihl does apply to cyber warfare, and everybody is pretty much on board with that, including the icrc, so that was very gratifying. the one, i guess i'll talk about a couple of challenges in the manual. one of the challenges, and we talked about this a lot, and mike's already addressed phase two coming occupy of the manualment but we've drawn that line in the sand for where cyber attack is and what might constitute armed conflict in cyber. that leaves unanswered most of the issues that have to do with what's actually happening now outside the context of armed conflict which most of the things we read about in the paper fall into this second category which is it's not part of an armed conflict, it's not part of an ongoing war, it's just something that looks like espionage or something that looks like what we called at

cyber command cyber disruption. in other words, systems are being just messed with, and it's inconvenient perhaps or maybe beyond inconvenient, maybe it makes life much more difficult. but these are things that aren't really addressed by the rules of cyber warfare, because it doesn't fall into that definition of warfare. but the manual's incredibly important because it finally drew the line. finish all those years went by without anybody, as jason pointed out, everybody talked about the line, but nobody would actually draw the line is and articulate where it was. so critically important project for that reason. and going on to really more of what the icrc is interested in is the actual conduct of hostilities. and i think it's a fair assumption or fair conclusion that we can all draw is that future armed conflict that we experience will all have a cyber component. cyber capabilities are such a big part of military

capabilities now whether it's gps-guided weapons or cyber-based communications capabilities or whatever it is, everything has a cyber component now just like it does in civilian life. so the way, the way we draw the rule set to apply inside armed conflict is critically important. and of course there are a couple of things that the icrc is looking at. one of them, and i'll just mention a couple. there are many more and, obviously, more questions than answers at this point, and one of the ones we've talked about is that functionality test that mike and i talked about. and i know i've experienced the same thing mike has. my computer doesn't work anymore. yes, i've been attacked by the help desk as well just like we all have. [laughter] but, you know, there is a -- and i guess jason and i have a little bit different opinion on this. i think those analogies tend to break down when we try to apply, sometimes, when we try to apply them from the physical or kinetic world into the cyber

world. it can be very difficult to draw those analogies. one of them would be, for example, we'd like to say that, hey, this looks like something aggressive that's happening in the cyber world, but you can't always -- versus something that might just be espionage or looking at something, drawing information out. but it's difficult in cyber, much more difficult than in the physical world to tell what the spent of somebody is -- intent of somebody is who gains access to a critical system. somebody might be sitting on the system and hit one key that would export information that's critical, you know, just traditional espionage, and hit another key in the same program that might destroy the system or set off a series of actions that would damage the system. so very difficult to tell what the legal position of that preposition mall wear would be -- malware would be. it's just a very difficult question, i think more difficult in cyber than the physical world. and the second one, i'll only

talk about two. the second one is the whole idea of means of warfare when you talk about cyber. so, again, in the physical world, the kinetic world, we talk about weapons as the means of war. and that's fairly simple. we look at rifles or bombs or ships or tanks or planes, and they're pretty easy to look at and determine whether or not it's lawful to use these in warfare. in cyber it can be much more challenging because, again, the same set of capabilities might be used for conducting espionage and for destruction. and what's more, it's also difficult to conduct a review on a software package that might change at the drop of a hat. so that can be a practical problem with doing legal reviews, for example, as required under additional protocol i. >> thanks, gary. so, mike, i'm going to give you a chance to respond, because i do this a lot more a living, and i have just unbelievable admiration for you to have blended together academics from australia or potts dam or amsterdam and even texas.

it's extraordinary. [laughter] but one of the issues is this threshold trigger issue which clearly is a hot issue the panelists have asked you to address. and i think it'd be helpful for the audience if you sort of elaborated a little bit more your reaction, how your group tried to figure that through and noodle the problem. >> yeah. well, arkansas i have, the problem is there's not one threshold, there are three thresholds, and now i'm going to sound like an international law geek which would be accurate. the first threshold is use of force. use of force is a threshold where if you cross that threshold, you've violated international law, okay? the most fundamental principle of international law, don't use force unless you can justify it either because it's an act of self-defense or it's authorized by the security council. the second threshold that we're concerned with in international law and cyberspace is the there are hold of armed attack -- threshold of armed attack. it's a completely different threshold, it has nothing to do

with whether an operation is unlawful or not. armed attack is can you respond, the victim respond with your own use of force. and then there is the threshold that jason just mentioned, and that's act of war. ihl lawyers don't use act of war, we ask -- but it's the same thing -- we ask has an armed conflict commenced. and the reason that's important is because if you cross that threshold, then the entire body of law known as international humanitarian law or the law of war kicks in. so this whole issue is dramatically complicated by which threshold you're talking about. are you trying to figure out if the state that launched it violated international law? are you trying to fashion a response? are you trying to decide whether now you have the law that it calls for combat tan si and protection of humanitarian assistance? you know, which threshold are you talking about? i will tell you that we struggled with all three, and it's my personal opinion we have

some guidelines, certainly in the case of armed conflict we have clear guidelines because the icrc over the years has done a lot of work in that area. but we have guidelines. my guess is that all three thresholds will change. i anticipate, this is just michael schmitt, that we will quit looking as ard at the nature of -- as hard at the nature of a cyber operations consequences as the severity of those consequences. so whereas today we talk a lot about is there damage or destruction, i think in the future what we'll be asking is in all three cases, use of force, armed attack and armed conflict, we'll be asking how severe the consequences. i mean, the holy grail for those of us who are ihlers, though, is to figure out how you come up with a standard of severity. how do you articulate a standard of severity? really bad? really, really bad? horrible? and this'll be very, very difficult only accomplished through state practice. >> it sort of reminds me of the

effects-based argument we used to have. >> this is exactly -- >> it's very analogous. so let's open up to the audience. i recognize some, of course, why don't you say who you are -- >> i'm a senior fellow on at the atlantic council, and i focus on iran, so here's the iran question. [laughter] >> are we out of time, harvey? >> thank you so much. thank you. it's been a wonderful event. >> [inaudible] >> absolutely -- >> an act of war and -- [inaudible] were the iranians then entitled the to respond with a similar act whereas it appears the only way they responded is through acts of disruption, ie, the attacks on our banks. so the iranians actually have not responded in a way commensurate with what was done to them. >> i'm going to collect a few questions so the panelists can gather their thoughts. maybe another question? oh, we have one right here.

>> [inaudible] my question is the attribution problem, and this is not mentioned in here before. so could you, please -- >> sure. >> okay. >> and i'll take one more. stuxnet, attribution and then the gentleman in the back. >> good afternoon. i'm jim -- [inaudible] a private citizen. i have a question regarding civilians on the battlefield. specifically, anticipatory self-defense in cyberspace. let us suppose that i know that there's a civilian hacker who's going to unleash a cyber weapon of mass destruction at some point in the future, i have near incon to are veritable evidence that that's going to occur. does the manual talk to that, speak to that at all in and if not, what are your thoughts on that? >> thank you so much. okay. why don't i start with jason and work our way down. >> great, thank you. i'll actually touch the attribution and the capabilities

of nonstat. nonstate. because it was a good question on attribution, and it comes up a lot. let me look at this as history, because we're all told that, oh, attribution is an issue, and you can never figure out where it's coming from. and, again, that's more true the more you're looking at the tactical and technical level. and this would be my response, also, on the issue that just got brought up about not knowing their intent. the tinier you look, the more difficult it is to know e where the attack came from and with what they're actually intending to the try. when you look at campaigns and conflicts, when you pull yourselves up as we're paid to do, i mean, as policymakers are paid to do, as senior officers are paid to do, as elected officials and government executives are paid to do, when you abstract up, a lot of those things that we've been told are true about cyber conflict are no longer true. look at what, look at estonia. the technical people will tell

you, oh, you can't say who was responsible for the attacks on estonia, because it traced back to over 170 countries. and it's a point where facts obscure the truth. that if you are in the united states, if i were in the white house in 2007, i would have told the president don't worry about 176 of the 178 countries where this attack is coming from. care about two; attacks from the united states because we have an obligation to our treaty ally, possibly even a positive hague convention responsibility to make sure attacks aren't coming from the united states, but also if you really want the attacks on estonia to stop, call the kremlin. put the pressure on the kremlin. so at our level we shouldn't be, we should never say the word attribution, because it implies technical. it implies starting at the technical level and solving for each layer above. in d.c. within the beltway, we

should be thinking who is the nation that's responsible for this. and we find that that ends up being a much more tractable answer. thank you. >> okay, gary, three on the table. >> well, i -- mike always pretending like he doesn't want to, i know he wants the iran question. [laughter] >> no, no, by all means. no. >> that is so generous of you, gary, really. of. >> anyway -- >> i will, i'll talk a little bit about civilians on the battlefield, and i guess it would depend on the status of the civilians. if they're actually engaging in activities that would qualify as armed attacks or part of an ongoing armed conflict and they're directly participating by their activities, then they would lose their protected status as a civilian under the icrc guidance anyway. and they'd become lawful targets just like a military member would, essentially, because they're not directly participating in hostilities. the question would be what

exactly they're doing. it wouldn't change the status of any collateral casualties or anything like that in the -- regardless of the situation. is it would just depend on exactly what they were doing. i do want to touch slightly on the attribution question, and i'll put my old hat back on for a second, because this is a question we talked about a lot at cyber com, i think there are different ways to use the word attribution, and we used to talk about machine attribution, individual attribution, but the important thing everybody wants to know is sponsor attribution. you probably could trace an event to a particular machine even if it's a hot point, so that machine's partly responsible such asthma chiens are. you might trace it back to an individual sitting at a computer, you could trace it back to the person who's responsible for the key strokes. that doesn't answer the ultimate question which is who's sponsoring that question, or why are they taking the action. and i'll throw out there as kind of an his historic, now, example i guess in cyber time, the georgia events which took place

as part of an armed conflict, but the people that were responsible for many of the activities took place in georgia were what are called hactivists or patriotic hackers, and there was, i guess you might call it plausible deniability if you want to look at it that way. so there is some question about whether or not a country can actually be pegged for sponsoring a people or whether they have a loose affiliation or whether they're just encouraging it. that still makes it a difficult question. not unanswerable, but challenging. >> but we can just insist. we can say like right now for the attacks on south korea, i would start that with beijing. so -- >> so so one of the issues that comes through, and we'll get to michael, that comes through and it's section two of the manual, concept of state responsibility. i'd be very interested in how you approach that. but first i think, michael, i know you really would like to respond to the stuxnet question. >> i'll actually tell you a story. life is better with stories. i was doing, after all of this

stuxnet, you know, nato says that the americans and the israelis committed an act of war against the -- oh, my god, oh, my god. bbc calls me up and says would you do our nightly news? i used to be a british professor, so i said, you bet. so i finished the nightly news, and they said, professor, would you stay on for another broadcast? because i understand the british system, i knew it was bbc world or bbc america. so i'm ready to go on the next show. i'm waiting, i'm waiting, and i hear the voice come on and it says welcome to bbc persian service. [laughter] and the first question is -- [laughter] >> shocking, really shocking. shocking. >> it's like, brain, don't fail me now, okay? [laughter] okay. it's all over the newspapers, and the reason it's all over the newspapers is because -- and we thought long and hard about doing this. we decided to say that the stuxnet operation if, if, if mounted by a state was a use of

force, because the prohibition on the use of force applies only to actions mounted or attributable to states. so if it was a state -- i mean, if it was a state that conducted that operation, then it was, in fact, a use of force. why? because it had crossed that first threshold. pause it caused physical damage -- because it caused physical damage. now, i hasten to add that we specifically said you should draw no conclusions as to the lawfulness of the operation, because there are grounds, there are bases in international law for conducting uses of force. my work for the united states navy, we're a use of force organization. that's what we do. obviously, there must be a legal basis for doing that. so the legal basis for that would have to be either self-defense or authorization by the security council. clearly, there wasn't the latter. now, the second threshold that i mentioned was armed attack. there the group was split. i'm of the opinion that if a state is behind this or a nonstate actor, then it was, in

fact, an armed attack unless -- i know i'm sounding like a lawyer here -- unless the action was taken in self-defense. because your defensive action cannot qualify as an armed attack in and of itself. and then the third threshold i mentioned was, earlier, was armed conflict. and there i think probably everyone would agree in the group, i speak only for myself though, that that operation would have launched an armed conflict if it was by one state against another state because of the extent of the damage. but all that means, it doesn't mean we've done an act of war like you read in the press, all it means is that international humanitarian law, international humanitarian law applies. so the big question here is who did it and can -- if it was a state, if it was a state, does that state have a credible claim

that it acted in self-defense? what? >> a colorable. >> it's a legal term. it's a legal term. [laughter] >> lawyers. >> it's lawyer speak. >> this is how we justify the exorbitant fees we charge you that our secretaries do. >> it's sort of like the word scintilla. >> but a straight-faced claim. can you make a straight-faced claim, and i can certainly come up with a scenario in which a state could make an argument that they had a right to engage in such an operation as a matter of -- >> what is that scenario? >> i'm sorry, ellen, of "the washington post," it's not your turn. [laughter] >> ellen works for a local paper. >> it wasn't last night --? >> [inaudible] >> very good question. very good question. very, very good question. >> a follow up, we say. >> no, i failed to answer the question. so thank you for raising that, because i've been asked that question a lot.

we need to be careful because, you're right, if it was an armed attack -- not a use of force, if it was an armed attack, because it's armed attack that gives you the right to respond. if it was an armed attack, by the time the it was discovered by the iranians, the right of self-defense had vanished. and the reason is because international law does not recognize retaliation. it recognizes a defense of yourself. so once an operation, once an attack is over, the international legal regime requires you to resort to other means to resolve your situation, diplomacy and so forth. so the fact that it wasn't discovered until the, until the attacks were basically over creates the curious position that if it was a state that did it and if it rose to the level of an armed attack, then the victim state would have to look for other remedies in international law. it's a fascinating case. >> so that issue, as you know, article 51 also when read fully involves the security council. [laughter] >> yeah. >> just as a matter of law, as a

lawyer. but i guess the other advice i'd give you is when dealing with the british the way i was brought up, we were taught that life is short, nasty and british. [laughter] >> we do have a question. >> did you want me to hit the other one? >> thanks very much, frank kramer. i wanted to prose a question to mike. first of all, i think it's a terrific panel, great work by all the people really. i want to suggest that maybe in this area looking at customary international law is not enough, that we ought to be thinking about creating new law. that it's not always just deriving from, but that it is actually making new laws so that nothing wrong with what you did, because i hi that's step one. but as you do 2.0, i think we might think about how do we look at this in new ways and propose new things, and i want to put three questions to you. one is espionage. you said, okay, doesn't really apply, but shouldn't there be something out there with respect to that, or should there be?

second, what about private responses? we have a lot of attacks, barbara mentioned the banks, various other kinds of things. does a private entity have a it right of response? and then the third question which relates to, you know, when can you respond, and you were saying if with respect to stuxnet goes to the issue often of imminent, and do we need to rethink the concept of imminent, and do we arguably just need to change it? so my real question is, don't we immediate to think of -- don't we need to think of cyber as somewhat different? it's somewhat the same, as jason says, but it's not all the same, in my opinion, and shouldn't we be getting out of the boxes and creating some new ones? >> thank you. so i'll give the panel a follow-up, because i think frank has raised sort of core issues about how we understand key concepts in this arena.

so, jason, want to start? >> oh, good. interesting, especially on imminent, and i'll let the other panelists bring up most, but it is curious on imminent based on what the administration has said their definition of imminent is for targeted killings. you know, where imminent is because in terrorism you can't always know where the next fall will strike, where the next blow will strike, imminent is anyone that's involved in the planning. and i know i'm not saying that correctly, but it's a very loose, looser definition of imminent than most of us, um, would use. and many of the same things are said about cyber, that you can never tell when the next blow will fall. and i think based on the history that too much is made of that. you can very frequently tell when the next blow will fall. so if we do choose the same kind of definition for imminent for cyber, i'm not convinced that it follows the practice how nations have actually fought conflicts. now, of course, that could change, and history is only good for telling you what's happened and can only hint at what might

come. >> so one of the issues there is the issue of imminence versus status which is one of the key issues inside the law of armed conflict that have been intertwined over the last decade. so i think you've raised that sort of point, jason. gary, do you want to take a shot at -- >> sure, yeah. thanks, harvey. i'll talk about a couple of them. one of them being the comment about customary law, and i would, i guess, comment that the custom and practice of nations is what builds customary international law, and that is happening. so we are, in effect, making new law if you look at it that way. it's challenging in cyber because what nations have been doing in cyber they've done rather secretively. so it's not been publicly available to study for scholars to study and for other nations to study perhaps. although, um, one might draw conclusions from what's been happening in cyber, at least what's reported in the paper, and that is that people are doing a lot and getting away with what they can get away with. so i don't know whether or not that's something that would

finally calcify into customary law, but it is, in fact, that is the custom and practice right now. now, maybe we haven't done it long enough to set it as law, but that is what's happening from other reports. >> you have another comment? >> it's interesting. it's difficult to know what custom is, what nations have done because it is so quiet. it is much easier to see what the custom is on what nations are not doing. if you're looking for cases where a really capable cyber nation has just unleashed cyber force on another one out of the blue, it hasn't happened. so it's very interesting. it helps us think about deterrence and other areas where you're not seeing that where nations will do things under a certain ceiling but seem unwilling to do things above that ceiling, perhaps because we're entangled, we use the same internet, or there's been the suspicion -- even though we haven't had the tallinn manual -- that countries are guessing, no, if i do something that kills people and breaks

things, i've probably gone too far. so we do have a customary of what nations aren't doing. >> so let michael speak, is this one of the issues that you'll set the threshold for where mischief is and the tallinn manual will give us a free ride for mischief? and frank's argument, what's the response? >> it doesn't address mischief. we never intended to do so. that's the follow-on project which our friends from estonia have graciously agreed to sponsor. let me address each of your three questions. the first one is espionage. espionage has been going on for a period measured in millennia, okay? to believe that now states will come together to outlaw espionage is -- i don't think realistic, but, but international law can certainly address the incidence of espionage, and that's where i think you will see movement. now, we were very clear in the manual, we addressed espionage in that context, and we said we need to be careful. lots and lots of things that are

associated wees by imagine the will be unlawful. so i take your point, and i happen to agree with it. this is an area that's ripe for treaty law and so forth. we want to make these acts that contribute. so i think that's a good point, and i happen to agree with it. the second, private responses. well, the tallinn manual dealt primarily with responses by states, and states have an absolute monopoly on the use of force as you know, although you can outsource uses of force to private companies, and they're acting on behalf of the state. it becomes a state act -- >> [inaudible] >> i'm sorry? >> [inaudible] >> that's exactly the case. you could do exactly -- for those that didn't hear, it's letters of mark which have to do -- >> and explain it for the audience. >> nautical terms. it's giving someone authority to go chase pirates and so forth. that would be consistent with current international law legal principles. so i can see that happening as well. the interesting question you asked, the really big question

is the im9/11 si question. i believe there's been an awful lot of confusion, and it was confusion that was started with the 2002 national security strategy when they talked about the definition of self-defense. it was my view at the time that we didn't need to redefine self-defense, because the law of self-defense already allowed us to defend ourselves against acts by terrorists and so forth. i read an article at the time, and i said what you need for self-defense, imminent self-defense, anticipatory self-defense which stretches back over a century to a very famous case called the kay lin case, you need the confluence of three factors. the other side has to, before you can defend yourself, they have to develop the capability or be in the process relevant to the iranian question or be in the process of developing that capability in a way that you won't be able to turn the clock back. the second factor is the other side has to intend to attack you. not to intend to attack you now,

but they are going to conduct an attack. and then the third point i made was you have to be in your last window of opportunity to defend yourself. and this is the most important. this means you have to give other means of response an opportunity to work;ty moment si, economic sanctions, before you can respond forcefully. but if you get to the point where if you can't -- if you don't act now, toesfully now, then you won't be able to effectively defend yourself, you're there. of it's imminent, you may use force. interestingly, the administration has recently adopted the last window of opportunity standard in a number of speeches that they've put out. so i'm delighted. because it works in cyberspace. the old temporal thing did not work. this works, so i think the administration is on the right track. >> it's tonny, because that's the presense: exemption issue. and what's interesting, also, is it comes from the naval experience of a certain period of time. so each part of the analogy is a

little bit more complicated in the modern period which is it's not as facile as people think. let's gather some more questions. here. thanks. >> hi. ann -- [inaudible] federal computer week. um, to change tack a little bit, i was wondering if you could speak to, perhaps, how the tallinn manual and/or some of the key themes we're talking about here may influence the u.s. military's development of cyber rules of engagement, um, and where they may all intersect. >> more questions? i see someone in the back. thank you. >> i'm john chang with delta risk. professor, you mentioned in the lead up to the finished product here that there was discussion of things in the physical world that constitute uses of force

including just the arming and training of forces. was there any examination of sort of analogous cyber technologies that are ambiguous but could reflect arming and training, and was there any attempt to maybe categorize them, enumerate them? >> one more on that side, and then we'll turn ask and come on this side. there was a gentleman right there, right there behind you. >> steve allowington, i work in the news business and study here in the city. my question, one of them actually goes to the remarks the young lady there made about cyber and the military. to what degree does the manual hue to the dempsey doctrine? that's one question. another is -- >> [inaudible] >> to what degree does the manual hue to the dempsey doctrine? >> dempsey doctrine? >> yes, sir. on cyber as an adjunct to military force. it was general dempsey's document rollout of more than a year ago. >> the chairman of the joint chiefs. >> yes. >> okay. >> second question is i chatted up last year a retired four-star, and we were talking

about the lack of political will on the hill for protocols against cyber, cyber espionage, that sort of thing. we've got protocols against espionage in a traditional sense, but nothing about cyber attacks. could you guys speak to that also? >> sure. >> oh, by the way, thank you very much, michael, for the trip down memory lane. it took me straight back to hugo -- [inaudible] from undergrad. i thought i'd long left those days behind. >> thank you. >> okay, gentlemen, do you want to go through those? >> great. um, i'll be very interested in the rules of engagement. we've already heard some hint about the way the u.s. has gone. it seems like the military feels more and more confident that they're getting the rules of engagement right. we've been reading that from "the washington post" and other places. and so that can make us feel quite good. i, because we don't know what they are, of course, there are many of us that wonder if we've gotten it right.

they don't want to release the rules of engagement because that will let the bad guys know how far they can go, but a little bit of transparency would make us feel a lot better. and especially having looked at history the way that i have and seeing how much warning time we tend to have, seeing how much response time that engagements, that conflicts take weeks, months, years, i'm personally cautious that the rules of engagement will be built by people that have been dealing with this tactically and saying, you know what? a strike could come at us from nowhere, and we have to respond quickly. which is absolutely true. but, again, that can be true in all of the other domains of warfare also. so i'm very concerned that we're going to be focusing in on the tactical and technical truths rather than on the strategic truths which say we have more time to be deliberative. >> great. gary, you want to pick any of that? >> yeah. i'll talk briefly about the rules of engagement as well.

the rules of engagement are classified and will continue to be classified for a good reason. i do know how the tallinn manual will effect rules of engagement is this: i think it'll probably have some effect, a positive effect, because the united states does try to comply with international law, and dod does, so i'm sure they'll try to comport with the rules as presented in the manual. you've seen the u.s., the dod struggle with roe, some of that has made it into the press thanks to our friends, and the -- some of the terms that have come out that have been bandied about in the u.s. government, things like active defense which people raised a lot of eyebrows, and now recently we don't -- again, we don't know what the rules of engagement are, but just this month the cyber com commander indicated there were being built certain teams that would specifically be offensive teams, so one wonders what the rules of engagement that will govern these cyber teams.

there must be something that's governing that, but we're not quite sure what it is at this point. i certainly think the manual can't hurt. >> i agree with gary on the rules of engagement. i think they'll have greater influence with regard to battlefield rules of engagement because there's a lot more granularity on the section on jus in bello, and i feel that will feed into battlefield rules of engagement. day-to-day rules of engagement. the army training question, the reason i was looking is we actually address that. we give an example of that, and what we say is that if you provide malware, for example, the provision of malware and the training mess to employ that malware -- necessary to employ that malware to, say, a group of hackers, okay, would, in fact, be a use of force under the principles set forth in the nicaragua case. so we specifically address that. and i guess i'm the only honest guy up here, i don't know what the dempsey doctrine is, and i'll admit that, so aapologize. of i just don't know.

>> we'll deal with that afterwards privately. i guess one of the issues that's come up through the themes is, you know, in the nuclear analogy there was always these doctrines of mutually-assured destruction. there was these doctrines that stopped things from happening based on sort of a doctrine of policy. do you guys see any analogy that's happening based on your experience now in the cyber? does that help control and understand what's going to happen if there is these issues? >> well, i'm an international lawyer. the concept of mutually-assured destruction doesn't play in international law. [laughter] and so we did not address it in the tallinn manual. [laughter] so -- >> okay. on the, i'm the policy guy, so i can jump in. and it gets to one of the questions that got asked earlier about the two kids in their basement about to unleash cyber war. and it's one of those myths that's really, really persisted, um, how easy it is to have a strategic effect on the cyber, in cyberspace.

and as we've looked, we've found it's just not true. that the kids in their basement or in the garage, the locations differ, um, can certainly do things that can be scary, and they can do some espionage things, and they can get the system riled up like the solar sunrise case of 1998, but it's still true that having a real strategic effect is the purview of nations themselves. and it seems to be for a long time. because cyberspace, it's very easy to take a whole lot of stuff down, but you can't keep it down. like even estonia or south korea. yeah, i mean, the atms going down in south korea, but they're back up in a up kohl of -- in a couple of hours. and nonstate actors, the kids in the basement, can do a lot of that. or nonstate actors can take down a particular target for a long time, like nonmiss did against h.b. gary. but they can't talk a whole lot of things down for a really long

period of time. that is still a province of states. and we went through the same thing during the talking about air warfare where folks said the bombers are always going to get through, you only need a few bomber that is' going to knock things out x it didn't work then either. that's probably going to change the more we do smart grid, the more we put medical devices online. the more it's not just bites in silicon that gets disrupted from a cyber attack, but concrete and steel. >> i just want you to know, the organizers have begin me the high sign. it's hard to imagine, because the hour's completely flown by. what i'd like to do, though, is give each of the panelists just a brief time to summarize. and i know, michael, i think you want to address certain myths that are out there for the record. so i'll let you go last. but, gary, do you want to do a summary? >> sure, yeah, just briefly. as i said before, i think the manual's done a great job at laying out some of the baseline rules and essentially has defined that piece of ihl that

should have been a relatively easily line to draw some years ago but never got drawn, so it performed an incredibly valuable function by doing that. as we go forward, the important part will be to develop those rules if they apply in the context of armed conflict, because that's where we're likely to see the application of cyber in conjunction with armed conflict. and we know we'll see it, and as we flesh out those rules, or that'll be critically important. >> michael, do you want to -- and then we'll have -- why don't you go, michael. >> there were three points, and i want to answer your question, alan. so stand by. first of all, it has nothing to do with nato. nato funded the project, it is not nato opinion. it's 20 guys in a room, okay? that know a little about international law. secondly, we've answered the stuxnet question. the manual doesn't find that israel and the united states conducted an unlawful attack against iran, blah, blah, blah, that's all nonsense. i don't know where that came

from. and the third is the attacking hackers question. i just want to emphasize that we never said that you can attack hackers. what we said is that exactly as gary said, if you have an armed conflict and someone chooses to participate in the conflict in a significant way that affects your military capability, then from longstanding humanitarian law, that person loses the protection that they're entitled to and becomes a target. that has nothing to do with hackers during peacetime, and it has nothing to do with a hacker during an armed conflict that is defacing a web site. nothing. but, ellen, i wanted to address your question because you and i have talked about this before. i believe as a lawyer that i could probably come up with a legal justification for making the argument that a particular state could have acted in self-defense in the face of the emerging iranian activities.

because, for example, i mean, no surprise that they're engaged in these activities, and it's also no surprise that they've made public statements that are threatening to that particular state, and in international law i'm very sorry, but when the head of state makes statements, then you have to take those statements at face value. you don't say, you don't listen to the head of state and say he doesn't really mean it, okay? so i think i could fashion an argument. i don't know if it's a winning argument, but as a lawyer, i could fashion an argument. i don't want to go any deeper than that. >> [inaudible] >> absolutely. absolutely. and the imminence would have been where the systems getting to the point where they were going to cross the threshold of not being able to get at them. because imminence is not only i have acquired the capability, it's i'm about to get to the point where i will acquire the capability, and that capability will be absolute absolutely secure. of course it requires the other two factors; intent and last window of opportunity. i want to hasten to add that. of but i think you can make a

colorable argument for that action being -- but, again, this is all speculation. i have no special knowledge. i'm just saying if i gave it to my students in law school, i think that would not be a wrong answer. >> israel -- [inaudible] >> well, i think we'll move on. >> yeah, we should move -- [laughter] >> as always, ellen. i guess i'm going to have to pass the mic or over to jason, but i just wanted to say how quick, how we knew this would be a wonderful panel. we knew that we would get a great crowd that would be able to engage the public in this. i think we're committed as a group at the aba with laura bells as the president to have more of these type of forums with our partners, and i just can't thank the panelists enough for being fascinating and intriguing as we knew they would and, jason, for being so -- nice talking with you. so i'll let jason close up the event. thank you all very much for being here. >> thank you. so i'll first leaf you -- leave

you with a caution. we're new to the cyber era. we're 25 years in, and it's tough to know what cyber conflicts are going to be looking like 25 years from now. so we really thank the experts of the tallinn manual for helping us pin down how the law looks right now. we thank the cc doe for making it possible, aba for making this possible. our next event for the atlantic council will be our cyber 9/12, the response after cyber catastrophes which will be april 12th at the newseum. thank all of you for being here. we'll have a no-host social immediately after this to your left. thank you very much to everyone for joining us. [applause] [inaudible conversations] >> you can find this discussion online at c-span.org. we're going to take you over now to the white house easter egg roll where the president and michelle obama are hosting the

135th easter egg roll on the south lawn. we'll take a look. ♪ ♪ ♪ ♪ ..

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[background sounds] >> at the white house was the first family with an easter egg roll. 30,000 people expected to gather here from all 50 states. live cooking demonstrations, storytelling and the president's basketball court is open as well peter jordan sparks nascar driver danica patrick's and adrian peterson just a few of the celebrities and athletes gathered here today.

coming up over on our companion network c-span this afternoon this encore presentation of the first five programs in our series of first ladies influence and image. >> the sequester will reduce our grants via about 5% which roughly equates to $22 million or so. which will be distributed among the various licensees and stations that i describe, and so we have in fact taken about a 13% cut in our overall federal

budget over the last two years and if the entire federal government did the same the cuts that we sustain, the budget would be $500 billion more than it is now so we feel like we have made a significant contribution to deficit reduction and the federal debt within our own context. >> next the future of aviation and impact of automatic spending cuts known as the sequester. national air traffic comptrollers association president paul rinaldi was one of the speakers during his this discussion at the u.s. chamber of commerce. this is that the aviation summit held last week in washington. it's just under 45 minutes. >> thank you carol. it's a real great leisure i think for all of us to be here and have an opportunity to talk about future trends in aviation

and i have certainly been here for the balance of of the day and have heard a lot of comments already. there seems to be a strong focus appropriately on nextgen and i think what we have heard from another -- a number of people including airline ceos is a belief in the potential for nextgen in terms of reducing fundamentfundament al footprints certainly. we have also heard talk about increasing capacity, increasing throughput and decreasing delays and i think inevitably because it them for it situational awareness nextgen has the edge potential to improve it as we go forward. i think there has generally been a lot of excitement expressed throughout the day about nextgen and about some of the future trends in aviation. they was think it was an encouraging to hear someone he airlines talk about 2012 being a

good year in 2013 having the potential to be even better. but you know there was an very famous washington redskins coach who said one time the future is now, and so i think when we talk about future trends in aviation we have to recognize that we are talking about future trends in aviation at a time when we have a gun to experience some of the impact of the sequester but not really the full impact. so i thought what i would do is just kind of begin because it seems like in a lot of ways the most direct impact of sequestration is coming at the tower level and give you an opportunity to just discuss what you see as our ability to move forward in this country to promote our aviation industry, to build an industry for the future at a time when we are making decisions today that are certainly uncomfortable where we want to go.

>> thank you, ed. yeah sequestration is beyond frustrating when we talk about growing the national air system, a system which is an economic system and we have heard everybody talk about it today. over 10 million jobs, $1.3 million to our gross domestic product and there seems to be conventional wisdom in this town that the sequestrasequestra tion will have little impact on it which is the first thing from the truth. the faa has come out with their list of 149 towers that are going to start closing from april 7 all the way to may 5. that will severely impact the capacity of the system and it will inject concerns about the safety of the system, a system which is the safest most efficient system in the world and the most complex system in the world and the most diverse system in the world and we have

a recipe of success and we are messing with that recipe very terribly i think. when you talk about the impact on the towers, it's not just the towers. we are again at the impact across facilities across the country and we are looking at the capacity of our metroplex is and it's going to have a severe impact. every comptroller is going to be possibly furloughed starting april 21 for the remainder and we don't know what fy2014 halves for us. so we have the greatest airspace system in the world running at its peak capacity of safety and efficiency and we are messing with it a cousin of congressional nonsense going on in this town. there are a lot of fingers and a don't want to point the finger at anybody at this point. we just have to stop the

influence of the sequester and they have to find out how they need to make their budget cuts and the most serious thing about sequestration to me is if the faa had a budget they would only cut that by 5% because that is the mandate on the sequestration so as we talk about moving forward and we talked about nextgen i have a very bleak picture of what nextgen could do if we are talking about increase capacity in the national airspace and in the meantime we are decreasing the national air spray system. we are kind of talking out of those sides of her mouth in this industry. everyone in this room depends on a vibrant growing national airspace system. and it served our country well. we should not mess with it. >> steve, i was struck earlier today. doug parker talked a little bit about nextgen and he made a

point however that there has already been significant capitol investment that has gone on, egg and not necessarinecessarily all of those benefits have been recognized. you lead a task force at rga called task force five which largely said we should -- the benefits that we have currently and then we ought to set forth a roadmap as we go forward. it's been sometime since we have delivered that task force five recommendation i guess i would be interested in your view on how we are doing moving forward and going to the future trend of maximizing our current system and then what you see the terms for nextgen. >> thanks, ed. first of all policy exactly right. we need to keep operating in the system at its current capabilities and i think that there are some opportunities to do that and it remains to be seen exactly how the sequestration will be implemented.

you heard a couple of ceos talk earlier about we are certainly not expecting the material impact and we hope that that won't happen and we are prepared for those eventualities. we have to operate under those circumstances and of course there is some impact in other areas that are concerning to us as well. with respect to task force five, i would probably give us about a c+ in our progress. it's been three plus years since that effort and a lot of good people in the industry and a lot of sustained effort of the nextgen advisory company has elevated 19 recommendations back to the agency. you know what we are seeing if you go back and look at the task force report and the timelines that we have set for ourselves, we are not meeting those milestones and i think also we

are seeing that there is sometimes a tendency to look at certain issues in isolation like there are certain numbers in the community that feel like ads-b is nextgen and it's not. those are tools in the toolbox but they are not the full capability and what we are really struggling with is how to take these tools and that capability which in some cases have been suggested for more than a decade and scale them to complex airspace. i think on the technology side we have that capability on airplanes. the u.s. carriers have hundreds of aircraft which is the back lawn of our domestic system on order. those airplanes will have the latest technology. they are all gps equipped and

fully capable and my carrier at delta airlines we have recently made a decision to retrofit 182 additional aircraft for cockpits that will be fully capable in that project should be done by the summer of 2015 so we are make and the steps. we have sort of, we have bet on the faa to deliver. there has been a good bit of progress. it's been spotty and i think we need to put some stakes in the ground as a country and as an industry and live up to those commitments. >> margaret rtca has been a really great forum for bringing together all the disparate parts of our aviation. we have had comptrollers and airlines general aviation has really done a good job of serving as a forum to bring what dave barger said was really the aviation system rather than being a bunch of separate industry segments recognizing that we are all part of an

ecosystem and we all need to move forward together. i think rtca has been a good form for that but now we are in a situation where we are facing sequestration at the very time that it seems to be moving forward. how do we get the most out of the nextgen system that we have all envisioned at a time when the faa has got a declining budget? >> thank you. a great question. i think one of the reasons first of all that the rtca has been successful is because it is people like dave barger and people like all of you who are sitting on this committee making all this work. 2009 is when they led tesla five. over 141 organizations and their answer was that we prioritize and we focus on delivering benefits to what is already an airplane and set ourselves up to be a will to get more quickly to using the new technology which

is where we are all trying to head. i think it's the same answer today. i would give you the same answer today. we have budget woes but that means you need to prioritize even more. i think the task force five report is still the blueprint for how to move forward. they named the priorities and looked out, can know there is this question that is often out there and there are people on both sides of this one. one that says if you do that and deliver a lot of spend time and resources delivering benefits of existing capabilities you are taking away from being able to focus on the further term. i think tesla five and members of the nextgen advisory committee are saying something different. interestingly altogether saying that and that is really the risk mitigation to that next level. if we can deal with the devil in

the details because that is what we are dealing with. it's just very difficult to get the full benefits out of pdn and it's going to be that much harder if we can't find a way to work together to do new policiet moving away from first come first serve to best capable, best served. call will tell you it's not a trivial path and now we are all together and ready to work on those things. so i think in terms of the faa is prioritizing and integrating leveraging across programs to the extent that they can to be able to help us move forward. >> a great transition is never easy and it's always the initial vision for nextgen was by 2025. it was almost like we were going to have this light switch flipped on and everyone knew that wasn't really going to happen. but you know i know that doug parker talked earlier about richard anderson and the delta merger.

lee moak and i were living this back during task force five and one of the reasons that the merger was so successful is that our boss put a stake in the ground and that sort of minimize the debate society if you will of what everyone else's timelines were and what we had to deliver. and i think what we are really missing on the agency side is what we have delta airlines call call -- [inaudible] there is not a single project management office that is working along you know all the lines of business and the faa because there's so much that hasn't happened that has to happen within facilities and has to happen within aviation safety and from my experience i have not seen the same level across the agency and frankly across the entire industry that we have kpi's metrics and deliverables

along a specific project timeline that we will be able to deliver these. >> you know lee, despite all of our plans for nextgen i think we all recognize that the workforce is a big part going forward and one of the things we often see in washington is we see where we want to go and then we see our policies and practices of the day kind of taking us in opposite directions. i think boeing has done a very good study that says we need pilots. we need lots of pilots in the world needs pilots and yet we are seeing a time where the military is turning out pilots. i think general aviation gnomic set the majority of pilots and ultimately the commercial airline and there we see students start going down. and yet we see requirements for hours flown going up. you know you are looking at where the future pilots come from. whatever the future is in terms of nextgen how were we going to

meet the needs we have getting people in the that's? >> a great question ,-com,-com ma ed that i want to start by thanking you and carol for not having me on this panel. if i would have been on that panel i would have said just fly direct and we can work through those problems but a lot of people have been talking about it. the reality is we don't have a pilot shortage now but we are looking forward and they are projecting out based on government policies going into effect now and how it might affect the pilot pool going forward. i would say what we have now and for the near term, it's really a paid commensurate with the education training and experience of pilots that are coming on. and you know to get your licenses and to get qualified and to get certified to participate in the safest air space in the world takes time

but it's very expensive. and we can expect any longer that you are going to go through that track and incur $100,000 in student loans and then go to work for a smaller carrier for $25,000 a year. that doesn't work especially in light of foreign carriers particularly in china and the middle east who are coming in and offering better pay and better benefits and our pilots are going overseas. they are doing that. also there is a choke point now but in about two to three years, maybe for a set of retirements are going to take place and the regional carriers, those pilots will start coming up to the mainline carriers and say digest some of the mergers and consolidations in the furloughs that they have had and there could be a problem there. there is not a problem now but there could be a problem there

but the answer to that problem i think rest in the entire industry trying to address the training issue and how you go from a to z. you obviously can't do it on $25,000 a year, especially when there is competition and again i'm a little biased but for the best pilots in the world. and that is what is going on here. so i understand people sounding the alarm but i think the solution is right in front of us and again you can't have an entry-level position in an airline that requires you to spend $100,000 plus, two physicals a year and i can go on and on, on your certificates. and it pays 25 grand. that is the solution. it rests in the entire industry. >> steve you brought up something that i think is important or people to keep in mind and that is nextgen is not

a technology program. nextgen is about technology but it's also about procedures and i think paul we saw that a little bit when we have an opportunity to go to seattle and look at the greater skies, look at kind of the exemptions to the handbook that needed to be made to make that work. how do you think we are doing? one as an airline and one is a comptroller at making the necessary policy and procedure changes in order to move to a nextgen? >> well, again we are make in some progress. it's slower than any of us would like, i think including the nbaa. we have a similar project to what is going on in seattle and we have a different runway configuration in atlanta but with the space parallel runways we are in the process of working with the agencies to collect data that will allow us to have

simultaneous approach, separation criteria to do curved past seven rmp final. it's painstaking work. you are trying to do this while running the existing system and not getting a lot of flossing capacity. what we are really seeing from my perspective, we have a great facility that we work with in atlanta. atlanta trach on is in power and it's an outstanding group. they are very progressive and very solution oriented but they really need some spacing management tools and predictive tools to help comptrollers do their job. we have most of what we need on the aircraft already but we just need to have the rules rewritten and the criteria developed and that takes time. >> paul what do you see in terms

of that? >> it's slower than anybody wants. when we were out in seattle almost a year ago, the work that was done on greener skies which reduces the carbon footprint on the environment, and the airlines took that leap and we worked very well in equipped to non-equipped airplanes so airplane so it was a nice formula to move forward. the agency said they would do a rule change that would allow us to use this procedure. we tested and we modeled it and we'd implemented it. we ran it in live traffic and tested again and then it got to the point where the rule change was taking a lot longer than anybody wants so we have a waiver for the airlines and some will say that's good. at least somebody is doing it. the problem is the mixture of equipped to non-equipped elevates the complexity level of the operation and equipped

airplanes will not get to use it as much because of the nextgen. when we talked about a rule change we would have 70% of the airplanes equipped to do it and we would be able to accommodate the other 30% and would be able to streamline the operation. when he reversed that and you only have 30% of the airplanes equipped to do it and the others can't do it because they don't have a waiver than the procedure is almost null and void. that is what is frustrating is because we have done some really good work there, everybody, industry, everyone was involved in the naked to the point of the rule change. i understand we brought a safety system, we run the safest system in the world and in the injection are any change will create uncertainty. we are aware of that. you do test and analyze any due life tests and you tweak it and if you do it live we should be able to streamline the process once we get to that point. >> let me follow up a little bit because certainly you have to

fly whatever the new procedures are. you've got to do that. you have got to work through what we understand and what are we trying to change and how often do we requested and let me get your views on this. >> i have a little different view because i think sometimes we get confused. pilots are trained to fly these approaches. comptrollers are trained to execute on the approaches so we have pilots and we have comptrollers. we have airplanes that are equipped to fly these routes, all right? so if you take all take all that and then you say okay so what is the problem and why are we talking 2015, 2020 and in earlier panel someone said they are planning on something for 2050. the iphone came in 2007 and we didn't have to teach people how to use the phone and we are on the iphone 5. if you go to an airline, airlines are complicated but look at what a kiosk is able to

do in this day and age. it changes the ticket, lets you pay and to larry fees. it lets you do all kinds of things. your seats, your flight change, your flight rebooked. right there the kiosk can do that and they are on many different versions now deployed and working. i know working with the faa they would like nextgen to be a reality so if you have the government wanting it to be a reality, the pilots, the airlines, comptrollers, all trained you have to get back to then why aren't we executing it quick or? there will be different technologies. so i think if you look at it i would say a little responsibility is on the shoulders of the people in this room because we don't all come together and prioritize.

we are each each executing on a different version of what we want out of the faa and increase the incredible noise level. let me tell you they are going to be in the airspace with us and we have to plan for that and we are talking about doubling of the airspace. we are talking about remote powered aircraft also in that airspace so i think if this group could come together and prioritize and bring the noise level down and work on some initiatives from a very precise initiative that would let the faa execute. i'm tired of beating up on the faa but we are all trained and we have equipment. >> i think it was a very exciting experiment from my standpoint. it was the first time that i've really understood and got excited about what it could mean because what i finally saw was

the best equipped best served does not mean mean not equipped and not served. what we saw when we were in seattle was the flights were unimpeded and then non-equipped planes were not impeded but the better planes got better service so it gave it gave us some excitement but i guess the question is how do you take what is working in the petri dish in seattle and make it go nationwide and you talked about priorities. if you are setting the priorities what would be a couple of things he would focus hosts intently on to try to make this a reality? >> i think the priorities are really important. both task force five and subsequently natca has looked at this separately and both have said the surface traffic and the comptroller tools to help set up

for those more fuel-efficient routes are the first top priorities that have the highest potential benefits and the lowest potential risks and setting it up to be able to introduce datacom to get to that next level of operations. so i think you know working through, we have announced a number of times on our committees what is the answer to best equipped and best served and in every case be kept come back and said it depends. it really depends on what you are implementing and where you are implementing it so in certain cases if you have multiple runways you can get the operational benefit very quickly who is equipped. datacom worked around whether and could give the benefit to anyone who who is equipped. in other cases you have to have 80 or 90% to give the benefits on those cases you need to be looking at other financial

incentives to bridge that gap. but what i think we would like to see is to take that next step and i know the faa as well wants to see how do we take what we have learned and what was learned in seattle and take it to maybe a more complex environment that may be ripples further into the national airspace system, working together so it's not just the faa but what can we all do together to make that work and tackle that? so i think as long as the faa continues to have the courage to come and work with us and ask and we have all got to step up and try to decide on a couple of those locations and capabilities and pool our resources and work through it. because it will start to snowball and you know it will build on itself and we will start to move much faster towards what we have all thought of as nextgen. i think the other initiative

except for us and for me and a lot of people in this room is the emerging market and in places like china and brazil and organizations that are coming in and clamoring for our standards. these are organizations that do not have been infrastructure. i think it was mentioned that we have leapfrogged so we really do have a lot of incentives to try to figure this out and get to that use of that technology as quickly as we can. >> so, glee's point about pilots are trained and we have equipment on the aircraft and we have been doing these things and comptrollers are trained. everyone has a desire to see things move forward. i would just come back to the point, that we talked about a few minutes ago. in terms of project management this really is a giant changed management exercise when you think about it. and keeping all of the

stakeholders moving forward in formation information at the same time so we are not held hostage by the least common denominator whether it's a rule change or a criteria that we are missing, some part of the problem is not solved and we are waiting for that to continue. we have been doing performance-based navigation to rain challenged apart for years. that is where the alaska process in juneau and other carriers have been doing these two mountainous airports for years and the challenge is to take that capability and scale it into complex airspace and still maintain the same margin of safety and capacity while you were doing all that. and i think that is why we need that single-minded focus and collaboration between all the stakeholders and the unions.

>> i will take an opportunity to see if anybody in our audience has any questions that they would like to race at this point. all right, if you do have a question just end up in raise your hand and they will come over with with the microphone. in the meantime let me go back just on the control tower issue. while certainly general aviation business aviation really is kind of a lifeline to a lot of small communities throughout the united states and provides economic development and allows companies to be located there and they engage in international operations. i think there is a concern within our segment of the industry about the number of control towers that are being closed and some of the criteria that is really kind of a blunt instrument that did it but what do you think in terms of workforce as you look forward?

where is the growth going to be because you can't just take someone and put them into o'hare. they have got to come from somewhere and how do you see this impacting them? >> we do small facilities, especially in the terminal world and you can go into a very conferencconferenc e or training program for three to five years and come fully certified. at en route facilities. in the terminal world they don't have that training structures so it's usually you start off with this lower-level facility and you develop your skills and then you move up to the atlantis of the world and there is probably a middle where you will move up to a greensboro or a next step up and then you move up to an atlanta or chicago. by shutting down these facilities in the 149 facilities they are shutting down there is another list that is going to be shut down in 2014 which is 49 towers and then they are looking at the remaining 30 something contracts.

this has a rippling effect throughout the whole country. as for the airlines, you have regional jets flying in and out of there in passengers that are getting on an airplane and flying overseas or across the united states. we have now shut off that passengers avenue to get to that hub. as far as interstate commerce or international commerce it's like shutting a laying down on an interstate highway in closing all on and off ramps from large city to large city. these people just won't have service. and more importantly when we talk about where a pilot is going to come from most of these towers have flight schools there and those flight schools are not going to be able to stay open and run a remote flight training program if they don't have comptrollers in those towers. it really becomes a one in, one out operation so it's a rippling effect throughout her whole industry and if you would have told me a year ago i would be on

stage trying to defend the contract tower program i would have told everyone in this room they are crazy. but i can't believe the turn of events weren't defending the contract tower program because it is a vital access to our national airspace system and we should all be up in arms. we are closing 149 towers with no justification other than 32. -- $000,000 in and 149 towers. that is a chief concern as we move forward with sequestration and it's a 10 year program. i have heard some senior faa officials say we are looking at a leaner, meaner aviation system and that is not what i stand for. i stand for growing and prospering reaching out to rural community's aviation. that is a deep concern of where we are moving with aviation in this country.

we are the world leader but we will not be the world leader if we continue to do what we are doing. >> one disconnect that is pretty evident here in washington, do you remember when the faa shut down for a couple of weeks a year or two ago? they furloughed the people that were working on the next gen situation and so then they didn't pay them when they came back later in the gear. they were able to get paid to the point on that was everything stopped and then if you are in doubt world i think you are starting to look for another job. we were like ebay stayed there but now we are in sequestration and some of the same cuts are taking place and we are talking about not in this room by the national transportation policy, a national airline policy and if you take a good hard look at it we need this to work but the people we have working on it in the government, i have concerns whether and they have concerns

whether they will have jobs tomorrow. we need them functioning. we need them there to make this happen and again it's tough when they get furloughed and they are not working on these projects. let's be clear. so it might be in until 2020 until we get this thing done. speier brought up the national airline policy and i think hearing about contract towers and maybe national aviation policy because we are all in that together but what would you hope for in the national airline policy? >> what i believe and what i really support efforts on a national airline policy. we needed at this precise moment because here we are profitable as an industry and the challenge is to be profitable going forward. that is the challenge. how do we keep it profitable and not relax right now where it is and if you look at it it's

everywhere. it's global competition and it's easy to say but we need a fair and level playing field for u.s. companies to compete anywhere in the world but if that's not fair and level and you're competing with state-owned enterprises are inappropriate tax policies in other countries, it's going to affect our ability to compete and therefore the ability for the airline industry to continue to be profitable going forward. the challenge is to keep it going and i think the right plan is wed a four a. is putting out with the airline policy. the airline policy association has a white paper on leveling the playing field and we also have a policy and other groups in this room have similar policies. again we need the government to help us compete globally, not by subsidies but by just ensuring this level. the take-away point today was open skies. fly anywhere in the u.s. or fly

to dubai. what a great trade that was. if you take a good hard look at it it speaks volumes for government policy. >> is there a question out there? speier talked mostly about domestic policy and the announcers mentioned the international side. if anybody would like to comment on the growth of the middle east carriers and the hub operations. we are talking about the future here and the future is now i guess. >> i think actually that was what lee was just talking about. when you look at a good number of entities around the world, are they really private businesses or are they subsidized or operated by instrument of national policy?

and you know, if you want to use dubai as an example, you know, the entire economic development of that emirates is focused largely on diversifying the economy in the financial sector and the aviation sector among others, travel as well, so you know that is what u.s. carriers are dealing with. it's not so much an entity that is operating as a private business trying to turn a profit but maybe going after more of the market share. so when we talk about a level playing field are open skies policy. >> let me just say from my perspective, one of the things that has really happened to everyone involved in aviation since the economic downturn is that there is a clear indication we are living in a global marketplace.

we are living in a global marketplace. certainly a business aviation. we used to sell 70% of the business aircraft to the united states and 30% abroad. during that turn down that flipped. 70% was going abroad and the other thing we are seeing is that there is more and more emphasis on this nest that had very long ranges and could go to brazil and russia and china and all of these places. i think the theme that i understand today is there were couple of things that we came across. clearly mergers have been part of the environment we are living in. connectivity is really important to anyone who is on an airplane whether it's business aviation or commercial airlines and international plays a big role. we need to make sure that we have the policies that support the reality of that and also help the u.s. find a way to stay the world's largest, safest, most diverse air transportation system in the world. we have a lot of pressure on

that right now. >> carol i expect you're going to cut us off now. >> well as i have kind of a question in a statement to make. i have talked to some people in the government agency a couple of weeks ago and they had come up with a plan because their agency is going to have a significant number of furloughs and they have come up with a plan that would literally eliminate the need for the furloughs because they were able to show where there were protections that could he made in training, and travel and another things that really were not all that necessary. they were told, forget it. we won't even listen to you. this is not going to happen. we are going forward with the furloughs and we have been told that this is a requirement. i am just curious, are any of you hearing that? >> well i think certainly we have heard there is not a lot of flexibility. i was with paul when the initial

tower closures were being announced and i think our reaction was, are you kidding me? you are going to close 150 towers and the united states and save $33 million? that is a lot of impact on jobs and economic development. there has got to be a better way. what we heard at that time is there is not the flexibility and i think that is one of the things as we go forward they have to try to understand about the sequestration, is whether or not we can make targeted and informs choices informed choices so we don't have across-the-board kind of as paul said earlier, 5% out of waste fraud and abuse and 5% out of the potential necessary we have got to have it. >> it sounds of the crowning -- the crony and that it would never happen so i've heard the same thing about flexibility to do it in any kind of prioritize way.

>> i think it puts all of our friends in government in an awkward position because they really are not in a position to fight this. for the rest of its it's an opportunity to raise it with our elected officials and they are actually the ones that will may go final decision and i think it's our responsibility to ask them to take a look. are there other ways in which this could be done so that we wouldn't close 149 contract towers and for anyone who is not familiar with the contract towey operated towers. it is just, we have a lot of questions that have been asked today and we have gotten some tremendous answers. this panel we want you back here because a lot is going to happen between now and then. when we talk about where's our industry headed? you have given us a lot of food for thought and now we need to see if we are on the right track

so let's all make sure that we let our elected officials hear from us and at the same time that we do this again and again because this was a great panel and i thank you all for organizing this. let's give them a big round of applause. [applause] >> live this afternoon on c-span2 the cato institute holds a discussion on the oversight of federal boards established under two pieces of legislation passed in 2010. >> the sequester will reduce our grants by about 5% which reveille equates to $22 million or so. we shall be distributed amongyñ÷

the various licensees and stations that i have described. so we have in fact taken about a 13% cut in our overall federal funding over the last two years and if the entire federal government had to stay in the cuts that we have sustained the budget would be $500 billion smaller than it is now. so we feel like we have made a significant contribution to deficit reduction and retirement of the federal debt within our own context.

>> julia i think is the madonna. she loved publicity. she actually posed as a model at a time when that was needless to say frowned upon and she was known as the rows of long island by all accounts was bewitching and certainly bewitched 57-year-old john tyler who married her and she loved being

first lady. it was julia tyler who ordered the marine band to play hail to the chiefs whatever the president of beard and it was also julia tyler who greeted her guests sitting on a throne on a raised platform with purple plumes in her hair. it's almost as if she receded to that more queenly role of martha washington and deliberately rejected. and their lack of coordination in eight efforts with the local population. president banda was part of the panel that included heads of

state from senegal, sierra leone and cape verde. president obama met with the leaders last week to highlight economic and democratic gains in their countries. this is hosted by the u.s. institute of peace and it's about 90 minutes. >> good morning everyone. i want to start i thinking president jim marshall for his very kind introduction and also the united states institute of peace for hosting this very important event this morning. there are a number of distinguished guests in the audience this morning. i will not attempt to identify equal all by name, but i welcome

you all with great pleasure to this important gathering. the united states institute for peace has long been a center of excellence toward preventing and mitigating international conflict. the institute's work in the sudan, its partnership with the state department's african peacekeeping training program and its contributions to africa are significant and i would like to add knowledge them is morning. as president obama said in front of the parliament in 2009, and i quote, good governance is the ingredient that can unlock

africa's enormous potential. democracy and good governance not only create free, just and more stable society, they also also -- or sustainable broad-based economic growth and development. that is why building strong partnerships to support democracy and good governance has been our top priority in africa as well as a key pillar of president obama's u.s. strategy towards sub-saharan africa. as we all know, democracy and good governance are about much more than just holding elections. what happens before and after elections is equally if not more important. that is why capable, reliable

and transparent institutions are key to the success of strong parliamenparliamen ts, the rule of law, protections for human rights, independent judiciaries, free presses and vibrant civil society's and private sectors protects democracy and good governance from those who might weaken or trample upon it. all four of our very distinguished and honored guests here today, president karoma of sierra leone, president salt who we expect shortly and president banda of malawi and the president jose pereira neves are here because of the contributions that they and their government has made to

strengthen democratic institutions in their respective countries. they are decisions have contributed to significant economic development and security gains in their countries and also in their respective regions. last year, sierra leone held free, fair and credible elections in which nearly 90% of the registered voters participated peacefully. these elections, sierra leone's third since the end of its decade-long civil war in 2002 awarded president karoma a second term to continue implementing his agenda for prosperity. [applause]

sierra leone's economy is expanding rapidly as a result of president karoma's leadership. president sall mackey who will be joining us shortly participated in elections in his own country one year ago. senegal one year ago was facing a period of instability and economic contraction. president sall mackey has made a number of political and economic reforms since being in office and the senegalese government now is launching efforts to end the bomb conflict in the region. under president sall's leadership senegal's economy is expected to grow by nearly five are sent this year.

president banda two took over in malawi nearly a year ago with her government immediately move to implement necessary political and economic reforms. together they devalued malawi's currency, removed price controls for fuel and cuts in government expenditures harriet in her first 100 days in office, president banda has turned malawi around. as a result the country's economy is expected to grow twice as fast this year. [applause] and last but certainly not least, cape verdi has risen from the bottom of any development

indicators because of the visionary leadership of prime minister neves. the country is vibrant. it's a two-party political system and its strong rule of law also has contributed to cape verde having one of africa's highest literacy rates, best in foreign investment environments and consistently high in economic growth. at every step of the way, the united states government has partnered with all four leaders in all four countries as they have implemented their reform. because each country has demonstrated serious commitment, our millennium challenge corporation has contacts in place with malawi, senegal and cape verde.

i might note that cape verde was one of the first three countries to receive a compact and it was the first -- [applause] and it was the first country to get a second compact. all of these leaders are focused on having the most significant development in their country. the ncc has selected sierra leone to develop a compact. again, thanks to the leadership of president karoma. [applause] the united states is committed to continuing its strong partnership with leaders in countries committed to democracy, respect for human rights, the full inclusion of women in society, economics and

politics as well as religious depressed freedoms. president sall welcome. [applause] >> i am going to stop here since we have a very full program and not a great deal of time. i would like to turn the microphone over first two president karoma and then to our other two presidents and one prime minister who are here with us today. i will ask that each of you tried to keep your remarks to no more than five minutes so that we have ample time for questions from our audience here as well as in our overflow rooms as well as those who are following us on social media. ..