event. and i think the fact that they were unable, they were unable to change the american way of life, they were unable to change the strategic goal of america is saying that in the short run and in the medal run, they are not winning. -- middle run. we still have to look at the very long run. because there is here a learning competition. don't under estimate the terrorists. they are smart. they are studying our self, your society, our society. they are adapt to our countermeasures. they'rthey are using the web iny impressive way, both for recruiting, propaganda and

operational, and operational activity. and when you see them looking for places when they can build a base, which are basically faith countries like afghanistan, pakistan, mali, the sinai, syria. this is were they create a base, and from there they will try again to attack our country. i think that we have developed a very good system to follow them. this was not the case before september 11. the intelligence today is much better, but don't count about 100% intelligence. sooner or later something will snake out. so we have to be on guard, continue to collect intelligence, continue to target

whoever we feel that need to be targeted, and the real victory over terror that we really continue our life, even if there are very tragic events like the event in boston. don't let them close the main city in northeast for couple of days. don't let them close tel aviv or jerusalem. continue with our life, continue with our building of our society in the direction that we belief in. the arab spring gave the terrorists a lot of opportunity to rebuild their forces. on one hand, and this is important. when bin laden was targeted, al qaeda was really in a tough

position ideologically. because he was not the only one that the young generation in the arab and muslim world will look at. the arab spring gave the young generation another direction, the direction of tahrir square. because tahrir square was much more -- the liberals are they spoke in tahrir square about freedom, democracy, rule of law, human dignity. this was much more attractive than jihadi. unfortunately, tahrir square was hijacked, and the arab world is going to another season, not so much the spring, maybe the winter. but the arab spring, once again, in the short run give al qaeda a

lot of opportunities. weapons from all over the place. libya is a big warehouse that now spread all over the middle east. syria, iran, so a lot of money, a lot of weapon, a lot of shelter to build their bases. but i think in the long run that people of career -- tahrir square will come there. this is a phenomenon that cannot be put back into the basement. the young generation of arabs are on the website. they can see how other nations are living. you cannot tell them stories. they know what's going on. they want to live, and this struggle of ideas in the arab world should be looked very

well, because i think that in the long run al qaeda is going down. how we continue to deal with terror, i already spoke about intelligence. cyber is new. i say the terrorists are there with cyber. we have to develop the means to deal with the terrorist on the cyber dimension. dealing with propaganda, dealing with recruitment, and doing their operational activities that can be done on cyber. drones is another way for dealing with terror. there is a huge ultimate whether drones are ethical or not. i think that this is like asking whether rifles is ethical or not.

the ethical issue is not the platform. the ethical issue is what is the rules of engagement. put aside whether the target should be, whether it should be targeted or not the what are the rules of engagement? but with cyber and drones you are not winning the war on terror. at the end of the day, you need to send the fields to do the job. and sometimes you need very good soldier, and thanks, thank whoever you want to thank the both israel and america has to very good warriors that at the end of the day, cyber, drones are not doing the job. we have the special forces that can do it. i want to finish my opening remarks by saying that, to speak a little bit about syria.

because of the chemical weapon, which as i say, if you combine terrorism with weapons of mass destruction, this can be an existential threat. but when i say weapon of mass destruction, i limit it to nuclear. and i want to downplay the field from chemical weapons. look, there is almost 80,000 syrian kids, not with chemical weapons, conventional traditional weapon, bullets, bombs, rockets. the chemical weapon is very inefficient weapon. it was used in history only against people who cannot defend

themselves. it was used by the germans against the bricks in world war i. until the bridge developed chemical weapons. at that moment it stopped. it was not used in world war ii, even all the sides who thought in world war ii has chemical weapons. it was used by the egyptian leader in the 60s against innocent yemenites who cannot protect themselves. it was used against the kurds by saddam hussein in the '80s. the chemical weapon is very inefficient weapon. and it is efficient only if you spread it from airplane. i don't see al qaeda having airplanes or spraying some areas. i think the israeli air force, the american air force can deal with it quite efficiently. and if you load it on a missile

and a missile is going and land in a very highest there, you need a very sophisticated fuel that i don't see the terrorists are there. so with all we expect, the fuel for chemical weapon should be downplayed, but the issue of 80,000 innocent syrian people is an issue that i think this audience should deal with. in 1948, there was the genocide geneva accord to prevent genocide. in the '90s there were two events in rwanda and bosnia, that the lawyers argue whether it's a genocide or not.

because it's not 100% genocide. and then the international community have decided that there is a norm, a new norm which calls the duty to protect, dtp. and this is speaking about internal conflict, that people are killed in masses. and even though it's an internal problems of the country, international community should do something about it. and for me it doesn't matter whether they are kids with bullets or with chemical weapons, it's the same. and the international community is not standing up to its duties. we are all under -- [inaudible] 2002. which may be people rush to an action that was not necessarily. but you can do the same mistake

with an action. and all the argument, not to do anything about syria that we helped in the last 18 months, are unfortunately happening with inaction. and if we would not take some action and don't think for a moment that i am a commanding, the commanding another invents or another boots on the ground, but you can really change the perception of assad that he can do everything, he can continue to kill thousands of people, tens, thousands of people without the war doing anything about it. this can be done by safe haven, no-fly zone, human terry and corridors -- humanitarian corridors, without violate the syrian airspace. by extent of operation, by

warning him what are the consequences if he continued to kill his people. so i think the adl conference is a good place to speak about. so i will stop here and would be very happy to take questions. [applause] >> ancan you address the norm, conventional attacks against iran? >> assuming that i understand the question. [laughter] if you remember last year, i say that there are five strategies to stop iran. engagement and agreement, tough

sanctions, covert shadow campaigns that nobody took responsibility for, regime change, and military intervention. i guess the question is on the covert operation. the covert operation, as i say, nobody took responsibility for. and the good news are that if you compared what iran has prepared, what iran plan to have as a nuclear infrastructure, a lot of folks -- should be in the summer of 2015. and the good news is that according to what happened to them, they were unable to reach this number. they have only 12,000 centrifuge. but this is the bad news. is they have 12,000 centrifuge. so the covert operation against

iran achieved a remarkable achievement. but, unfortunately, it's not stopping their rings. if their premiums continue to go forward, according to a very important and sophisticated strategy, not to which to the bomb as fast as possible, but to which to the bomb as safe as possible. so they're going in a slow pace, but they are redundant, very white, very deep. they are in the threshold. u..

and to launch an operation. iranians want to be on the threshold with so much capability. 10,000s of centrifuges and a lot of fissile materiel and be able to break out in a month between two inspections of iaea. and they're not there yet. so that's why they continue

to buy time. they continue to come to the engagement but basically not agreeing to any, anything that will stop the program and if they continue with the same pace, we are going to face an iranian capability to break out in a very short time towards the end of the year. [applause] >> three more suspects have been taken into custody in the boston marathon bombings. the boston police department made the announcement in a tweet this morning saying more details would follow. three people were killed and more than 260 injured on april 15th when two bombs exploded near the finish line of the marathon. also today the house homeland security committee announced it will hold a hearing on thursday of next week to examine the boston bombings and the implications for homeland security. the committee chairman

michael mccaul says this will be the first in a series of hearings on the bombings and it is imperative we understand what happened, what signs may have been missed and what we can improve. today the george w. bush presidential library and museum officially opens to the public. join us when we explore the library with former first lady laura bush and she describes and construction of the center and taking us through the exhibits. here is a brief look at our conversation. >> as i well know your husband had a lot of critics. will this change the way people view his presidency? >> i don't know if it will necessarily change the way. it is not meant to do that. it is meant to explain what happened in those eight years of history, to talk about all the difficult things that we faced as a country and his choices and decisions that he made, to respond to whatever the challenges were. i think people will learn a lot. i think there are a lot of things people don't know, or

don't know about pepfar, the generosity that the american people funded. i think there are a lot of interesting things people will learn about they don't know before. but i also think it will give them an idea what it is like to be president. there are successes and there are failures. just like in anyone's life. we all have that. and certainly our presidents are human and we'll have those, you know, same sort of records. >> has it met your expectations? >> it has. i think people will really find it very, very interesting. we tried to include everything. of course you can't include every single thing. you and i haven't even talked about our support for dissidents and hope freedom movement that is part of the, this wall that i'm looking at here behind you. >> mrs. bush. thank you very much. >> thank you very much, steve. thank you so much for being here. >> you can see our entire interview with the former

first lady tonight at 8:00 eastern over on c-span. we'll also talk about the nation's presidential library system and how the libraries are funded. plus highlights of c-span's presidential library coverage throughout the years, including a walk-through the reagan library with former first lady nancy reagan. visit at libraries of fdr, president clinton and the first president bush and lyndon johnson. >> we do know that a she was invalid when she got to the white house. people in fact think she didn't participate much and that isn't exactly true. she was very, very involved. she set up her own bedroom upstairs right across from the president's office basically. she was always able to hear what was going on. she was very active. she read the daily newspapers. brought different points of view to the president. was able to calm him down constantly. of course she was the grandmother of the house as well as taking care of her daughters and her

grandchildren. >> the conversation on eliza johnson is available on our website, c-span.org/first ladies. tune in next monday on the our next program on first lady, julia grant. >> a senate judiciary subcommittee held a hearing recently on the constitutionality of the use of drones to target terror suspects overseas. witnesses included retired u.s. military officials, constitutional law professors, and a yemeni activist whose village was hit by a drone missile causing civilian casualties. illinois democratic senator dick durbin chaired the 2 hour, 20 minute hearing. >> this hearing of the subcommittee on constitution, civil rights and human rights will come to order. today's hearing is entitled, drone wars, the constitutional and counterterrorism implications of targeted killing. senator cruise is on his way from another hearing -- senator cruz. i want to start on time but

certainly understand there are conflicting schedules we face here. this is the first ever public hearing in the senate to address the use of drones in targeted killing. we're pleased to have such a large audience for today's hearing. it demonstrates the importance and timeliness of this issue. thank you to those that are here in person, those watching live on c-span and those following the hearing on twitter and facebook using hashtag, drone wars. at the outset i want to note that the rules of the senate prohibit outbursts, clapping or demonstrations of any kind. please be mindful of those rules as we conduct today's hearing. there is so much interest in the hearing we have larger room to accommodate any overflow crowd. if anyone could not get a seat in the hearing room they can go to 226 and dirksen. i want to thank senators leahy and grassley, chairman and ranking member of the

senate judiciary committee for pressing the justice department to provide the committee with the justice departments memos on targeted killing of americans. the department recently he provide the memos to the committee. i personally had an opportunity to review them in advance of today's hearing. as we will discuss today, this was a positive step but i still believe justice department should provide the committee with its memos on the targeted killing of non-americans as well and make public the legal analysis contained in the memos without revealing any intelligence sources or methods. i would like to take a moment to also acknowledge my colleague and friend, congresswoman barbara reof california who -- lee of california who joined us today. we spoke recently on the phone about drones and aware of her great interest in this issue. thank you, congresswoman lee, for being here. i ask unanimous consent to include in the record a statement from senator rand paul of kentucky. during the filibuster it of

john brennan's nomination on the senate floor, i invited senator paul to testify at today's hearing. he couldn't make it because of a conflict but he hasn't ad written statement. and without objection it will be added to the record. i will begin by providing some opening remarks and then turn to senator cruz. thank you for joining us for his opening statements before our witnesses. the constitution bestows upon the president president of the united states the unique responsibility and title of commander-in-chief and with that title comes the responsibility to protect and defend america from foreign and domestic enemies. to accomplish this goal the president has a military that is the best in the world, best-trained, best-quipped and most effective. while the tactics and tools used by our military are ever evolving one thing must remain constant. ours is a democratic society where the rule of law prevails. the president, must exercise

his authority as commander-in-chief within the framework established by the constitution and the laws passed by congress. even as president obama command a military with the most sophisticated weapons known to man, including weaponized drones and targeted killing operations, his authority is grounded in words written more than 200 years ago in our constitution. at times over the course of our history the rule of law has been abused during times of war. when this occurs, it challenges america's moral authority and standing in the world. this potential for abuse is a stark reminder of congress's responsibility to authorize the use of force only in narrow circumstances, and to conduct vigorous, oversight, once authorized. the heat of battle and the instinct to defend can create moral, legal and constitutional challenges. we can all recall the

controversy surrounding the use of torture in a previous administration. torture, though clearly illegal under both domestic and international law, was rationalized at that time by some as appropriate in our war against terrorism. today's subject, the targeted killing of combatants in contrast to torture has always been part of warfare in areas of active hostility. in recent years however it has been employed more frequently away from the traditional battlefield. the use of drones has in stark terms made targeted killing more efficient and less costly in terms of american blood and treasure. there are however, long-term consequences especially when these airstrikes kill innocent civilians. that's why many in the national security community are concerned that we may undermined our counterterrorism efforts if we do not carefully measure benefits and costs of targeted killing.

this administration has not claimed the authority to override laws like the criminal prohibition on torture. instead, the administration has attempted to ground its use of drones in a statute. the 2001 congressional authorization to use military force. and officials like attorney general eric holder and cia director john brennan have acknowledged the strikes and delivered speeches explaining the administration's legal and policy positions. in my view more transparency needed to maintain the support of the american people and our international community. for example, the administration should provide more information about its analysis of its legal authority to engage in targeted killing and the internal checks and balances involved in u.s. drone strikes. and the administration must work with congress to address a number of serious, challenging questions, some of which are being hotly debated even as we meet.

what is the constitutional and statutory justification for targeted killing? what due process protections extend to an american citizen overseas before he is targeted and killed by a drone strike? what are the legal limits on the battlefield in the conflict with al qaeda? and is it legal to use drones not just in war zones like afghanistan but also to target terror suspects in places where the u.s. is not involved in active combat such as somalia and yemen? what is the legal definition of a combatant in the conflict with al qaeda? and who qualifies as a associated forces under the 2001 aumf? should the u.s. lead an effort to create an internag legal regime governing the use of drones? what moral and legal responsibility does the united states have to acknowledge its role in targeted killing and make amends for inadvertent destruction and loss of life,

particularly where missiles kill or injure innocent people? these are some of the questions that we will he can more at this very serious hearing. speaking recently about the use of drones, president obama said quote, one of the things we've got to do is put a legal architecture in place and we need congressional help in order it do that to make sure not only am i reined in but any president is reined in. now i agree with the president on the need for clear, legitimate and transparent legal framework for targeted killing. today is the first step in that process. i do want to note for the record my disappointment that the administration declined to provide a witness to testify in today's hearings. i hope in future hearings we will have the opportunity to work with the administration more closely. i will now recognize my colleague, senator cruz, the ranking member of this subcommittee. >> thank you, mr. chairman. i would like to begin by thanking the chairman for holding this hearing on this very important topic. i would like to thank each

of the witnesses for joining us do and i would like to echo the concern that the chairman raised and the disappointment that the obama administration declined to send a witness, particularly after this hearing was delayed for one week in order to accommodate the administration's schedule and i am hopeful they will provide witnesses at subsequent hearings. drones are a technology. like any technology they can be used for good purposes or for ill. the real scope i believe of this hearing, and of the concern is on the scope of federal power, and in particular the scope of federal power to engauge in targeted killings. the obama administration has for some time advocated for a drastic expansion of federal power in many, many contexts. indeed on april 9th, i released a report that detailed six different

instances in which the obama administration has gone before the u.s. supreme court advocating a radically broad view of federal power, and six different times the u.s. supreme court has unanimously rejected the administration's view of federal power. and has instead concluded unanimously that federal power is more circumscribed than this administration recognizes. indeed, federal overreach is what was at the heart of the march 6th filibuster led by senator rand paul which i was quite proud to participate in a significant manner. that day began with a hearing before this full committee where attorney general holder testified. and at the time i took the opportunity to ask attorney general holder if he believed the constitutional loud the united states government to use a drone to kill a u.s. citizen on u.s. soil, if that individual did

not pose an imminent threat? the attorney general declined to answer my question as initially posed and instead he responded he did not believe it would be appropriate to use a drone to do so and said, and i paraphrase here, that we should rest confident that in their discretion the administration would not choose to do so. my response of course was, that the question was not a question about propriety. it was a question addressed to the chief legal officer of the united states asking whether the united states department of justice had a legal position on whether the constitution allows the federal government to kill a u.s. citizen on u.s. soil if that individual does not pose an imminent threat? three times i posed that question to general holder. three times declined to answer and simply stated it would be appropriate. but he would not say whether or not it would be

constitutional. finally after the third time, he went back and said, that when he said inappropriate, what he meant was unconstitutional. that exchange served later as the predicate for the 13-hour filibuster that occurred as first senator rand paul and then one senator after another after another came to the floor of the senate to insist on basic constitutional limits on the authority of the federal government. and let me be clear. the authority of the federal government and the protection of the constitution should not be a partisan matter. the statement from the attorney general that we should trust the federal government to do what is appropriate, in my view, the bill of rights is predicated on the notion that we do not trust those in power, be they democrats or republicans. that the bill of rights exists to protect our liberties regardless of who

happens to be in power. that 13-hour filibuster did something remarkable. during the course of it americans became fixated by c-span. now i would suggest fixated by c-span is not a phrase that exists ordinarily in the english language but we saw thousands of thousands upon americans go on twitter, go on facebook, on twitter, to begin speaking out on liberty for limiting the authority of the federal government to take the life of u.s. citizens on u.s. soil. as a consequence for standing for principle, we saw the next day the administration do what it declined to do for many weeks, which is acknowledge in writing that the constitution does not allow a u.s. citizen to be killed in those circumstances. in my view we need greater protections than simply a letter from the administration. i'm hopeful that congress will pass legislation making very clear the limits on federal power. i hope this panel of witnesses will share your

wisdom and expertise on the appropriate boundaries under the constitution, and the appropriate statutory boundaries that congress should consider. thank you. >> thank you, senator kuz. -- cruz. we'll turn to our panel of witnesses. at the outset i want to thank senator cruz and his staff working with my staff to develop a witness list for today's hearing. you will hear a wide range of different points of view in the course of the testimony. now in keeping with the practice of the committee, will witnesses please rise and raise their right hands to be sworn. do you swear or affirm the testimony you're about to give before the subcommittee will be the truth, the whole truth and nothing but the truth so help you god? thank you. let the record reflect that the witnesses, all six have answered in the affirmative. now the first witness will, general retired general james cartwright. general cartwright serves as harold brown chair of defense policy studies at the center for strategic

about and international studies. general cartwright retired from active duty on september 1st on 2011 after the 40 year a career in the marine corps. he served under two presidents as vice chairman of the joint chiefs of staff, the nation's second highest military officer. he was also commander of the u.s. strategic command. general cartwright studied at the university of iowa, air command and staff college, naval war college and massachusetts institute of technology and i note with pride he is a native of rockford, illinois. general cartwright, thank you for your service to our country and thank you for joining us today. your written statement will be entered into the record and now your opportunity to testify. please. >> thank you, senator durbin and senator cruz and other distinguished members. it's an honor and a pleasure to testify before this committee. thank you for inviting me. in the time allotted i would like to address three questions central to the topic of this hearing. the first, are we to continue with policies of

the global war on terror as they relate to targeted killings and the use of armed remotely piloted aircraft? that is number one, defeat terrorists and demolish their organizations. number two, identify locate and demolish terrorists along with their locations. three, deny sponsorship, support and sanctuary to terrorists. four, diminish the underlying conditions that terrorists seek to exploit. and fifth, defend u.s. citizens and interests at home and abroad under both the domestic and international law regarding national spefl defense. i support this mission and policy. second, underwhat authority and accountability framework when operating outside the united states are we to operate? intelligence? often referred to as title 50 and covert activities of military, off the 10:00 referred to title 10 in clandestine activities. law enforcement, usually on the outside by the fbi or some other framework.

is the framework robust enough in this mission area to provide appropriate, direction, oversight and accountability? the dod framework requires written orders from the national command authority, secretary of defense and the president, to each person in the chain of operation and accountability. who, what, when, where, what capabilities, what restraints, and what types of collateral damage, what to do if there is collateral damage, required metrics and after-action reports, et cetera. this direction is provided in the mission statement and objectives, warning orders to begin detailed planning, preparation to deploy orders to move to a point of embarcation, deployment orders to move to the objective and orders to conduct the operation. i could support consolidation of the armed remotely piloted aircraft under dod, a question that was asked of me only if there are fundamental changes in how dod trains and equips for this mission.

i believe each of the authority and accountability constructs, intel, military and justice, should remain available to the president, adjusted to assure they are effective for this particular mission. lastly under what conditions are armed remotely piloted aircraft and appropriate capability to carry out this mission? in this campaign the u.s. has employed bombers, attack aircraft, cruise missiles and special operations forces in various scenarios. improvements in technology and emergence of armed remotely-piloted aircraft provide ad sit improvement in our ability to find, fix and target in this mission area. they are not perfect. they can be improved. no other capability we have today is better suited though to conduct this mission under the guidelines provided. improvements in sensors and weapons that increase better identification of authorized targets and weapons that reduce the potential for collateral damage should be pursued. finally and in summary, my

recommendations to the panel and to the committee, one, review and address as appropriate the framework for direction, oversight, and accountability and i have a long piece on this inside of my written testimony. if it is to be a covert mission it should be conducted by the intelligence community. if it is to be a clandestine mission it should be conducted by the military and train an equip authorities will need to be adjusted. improve and remotely, improve the remotely-piloted aircraft and weapon systems used in this mission area to better align their capabilities with the desired effect. i am concerned we may have ceded some of our moral high bound in this endeavor. while i continue to support the objectives of this cam pan i commend to the committee my recommendations made in my written and oral statements. thank you very much, mr. chairman. >> thank you very much, general cartwright. our next witness is professor rosa brooks at

georgetown university law center. in addition to teaching law professors brooks is a senior fellow at new america foundation and weekly columnist on national security issues for foreign policy magazine the previously professor brooks served as counselor to the undersecretary of defense for policy where she founded the defense department office for rule of law and international humanitarian policy. she is a graduate of harvard university, oxford university where she was a marshal scholar at yale law school. professor brooks, the floor is yours. >> thank you, senator. i submitted 20 pages of written testimony much like c-span, people don't usually refer to what law professors write as riff vesting i will condense the 20 pages into five minutes and focus almost exclusively on the broader rule of law issues i believe are raced not by drones as such but u.s. targeted killing policy. in the context of the traditional battlefield i think as we know and already said drones do not present any new legal or rule of law issues. it is in the context, it is

in the context of places such as somalia, yemen, et cetera, outside of traditional so-called hot battlefields we're suddenly presented by significant problems to the point i think the use of u.s. targeted killing policy as currently understood appears to both challenge the legal frameworks that exist and potentially dangerously undermined the rule of law. not because of some conspiracy or lack of concern but i think we're just faced with a situation where the fit between the law and the legal frameworks we have and the situation on the ground isn't very good anymore. so the idea of the rule of law as you and senator cruz both said is to protect people from the arbitrary exercise of government power. in ordinary circumstances we all know that means the government can't come in and take your property or your liberty or kill you without some sort of due process and similarly we believe that the government can't use force to kill someone in the borders of another state without that state's consent and without appropriate

judicial process. obviously there are situations where ordinary rules don't apply such as in wars. in the context of wars, armed conflicts the law of armed conflict tells us it is acceptable to kill whether by slingshot, gun or drone. the problem here, is that we have two different bodies of law which have radically different rules concerning due process and the use of force by the state. and the law we call this the lex special, and that is fancy latin term talking about special law applying in only special circumstances, in this case armed conflicts law of armed conflicts. lex general, applies in ordinary circumstances in peacetime. that is not necessarily a problem to have two radically different sets of rules to apply in different situations. it is not necessarily a problem as long as we're pretty clear how we know the difference between one set of rules apply and when the

other set of rules apply. on the traditional battlefield, it is pretty clear. you have uniformed soldiers. acknowledge of armed conflict. objective observers, journalists saying yes there is large-scale armed conflict here. on the other hand when we get off the nontraditional battle field as geographically dispersed organized terrorist organizations it becomes very, very hard to say here is where the armed conflict is, here is where the armed conflict it. here who is a combatant, here is who is not a combat ant. the frameworks start breaking down. the problem we have nobody outside a very small group within the u.s. executive branch knows how we're making those decisions who is a combatant, where is the war, et cetera. it is not like world war ii. also the information and the process are classified so it is just very, very hard to get a grip on what basis we're making any decisions. that means that all of our core rule of law questions in which we figure out how

we even know what body of lawp a price are unanswered. what is the criteria for determining who is a combatant? or who is an affiliate of al qaeda? what does that mean? where is the war? does law of armed conflict travel anywhere a combatant travels making it applicable anywhere? what about sovereignty issues? does it matter with a state doesn't consent? who decides if a state is unwilling or unable to take appropriate action? who in the u.s. executive branch makes the decisions? what is the chain of command? what are the mechanisms for insuring we prevent abuses? this is a dupe problem as i said. i don't think this is a problem of lack of good faith on the part of officials. this is just a problem when we have a concept like armed conflict gets squishy enough we use the same term to talk about world war ii and what is going on right now with regard to al qaeda and its affiliates that is not a term that has useful work anymore. but it means in practice we just lose any principled means of categorizing a

targeted killing. should we call them lawful targeting of combat ants, lawful under the law war? no problem if that is the case. should we call them murders extra judicial killings as many human rights groups asserted? we don't have a principled basis for deciding anymore. i worry about the precedents we're setting for less scrupulous states such as russia, china, et cetera. all of this i could talk about in much more detail and would be happy to during the question period. what it comes down to senator durbin, senator cruz, right now we have the second i have tiff branch making a claim it has the right to kill anyone anywhere on earth at any time for secret reasons based on secret evidence in a secret process undertaken by unidentified officials that frightens me. i don't doubt their good faith but that is not the rule of law as we know it. in my statement submitted for the record i do suggest a number of reforms that might improve our ability to

insure oversight and accountability. i don't have time to discuss them now but i very much hope we will address those issues later. i will just leave you with this final thought for now. which is that, that i believe it is absolutely possible to make a plausible legal, argument justifying each and every u.s. drone strike but to me this just suggests that we are working with set of legal concepts that have outlived their usefulness. if law exists to restrain untraveled power, real question is not whether u.s. target killings are all legal. the real question is this. do we want to live in a world where the u.s. government's justification for killing is so infinitely mallable. thank you very much. >> thank you, professor brooks. professor ilya somin did i pronounce that correctly? at george mason law school. make sure your microphone is on. you will see a red light if

it is. the professor's research focuses on constitutional law, property law and popular political participation. he is coeditor of the supreme court economic review. previously the john olin fellow in law at northwestern university law school. earned a ba at amherst college, ma in political eye sense from harvard and jd from yale law school. please proceed with your testimony. >> i would like to start by thanking chairman durbin and senator cruz and other members of the committee for your interest in this important issue. in my testimony, i would like to focus on two key points. first, that the u.s. of drones for targeted killing in the war on terror is not in of itself illegal or immoral but second, that there are serious legal and policy issues that arise when the problem of insuring that we're actually choosing the right target and confining these drone strikes to people who really are terrorist leaders or at least terrorists of some kind as opposed to innocent

people unduly caught in the cross fire. so by its very nature, in a war targeting killing in my view is a legitimate tactic and the current conflict between the united states and al qaeda and its affiliates is a war authorized authorized by authorization of use of military force established in 2001. at various times, the president, congress and the supreme court have all recognized that the current conflict qualifies as a war and certainly in many past wars combatants have legitimately resorted to targeted killing. for example, during word war two the united states targeted japanese admiral yamamoto. virtually everybody agrees that was entirely legitimate military operation. if it is legal and morally permissible to use targeted killing against uniformed military officers, surely the same applies to terrorists and terrorist leaders. it would be perverse if terrorists deserved greater immunity somehow from targeting than that enjoyed

by uniformed military officers who at least pretend to obey the laws of war whereas the terrorists clearly do not. in addition, i think it is not inherently legal or problematic to target american citizens in such situations. so long as those american citizens are also combatants in the relevant war. the supreme court in the 2004 hamdi decision and at other times has recognized that sometimes u.s. citizens do qualify as enemy combatants. although the use of target the killing whether by drones or with other weapons is not inherently legal or inherently unethical the issue of choosing our target does raise some very serious issues. in the war on terror we face an adversary that generally does not wear a uniform and also often doesn't have a clear command structure and therefore is often difficult to tell who is a legitimate target and who is not. this state of affairs raises two possible problems.

first, sometimes we might inadvertently or recklessly target an innocent person. second or worse the possibility exist that is the government could deliberately target someone who is innocent because perhaps they're a critic of the government or otherwise attracted the ire of leading government officials. this is particularly problematic from a constitutional point of view if there is abusive targeting after american citizen, doing that would violate the due process clause of the fifth amendment which prevents the government from depriving people of life, liberty or property without due process of law. two aspects of current policy i think raise serious questions about we're doing enough to insure we're choosing only legitimate targets. one is the sheer number of targeted killings over the last several years which includes hundreds or even thousands of people and studies by various people including mr. bergen who will testify later suggest

that only a small percentage of these individuals who are killed actually were senior al qaeda leaders. secondly, the department of justice memo released a couple months ago states that it is permissible to target american citizens who are quote, senior operational leaders of al qaeda and who pose an imminent threat but it doesn't say anything about how much evidence we need to have before we can determine that someone really is a senior al qaeda leader or which officials get to make that decision. in my written testimony, i discussed in more detail some possible institutional solutions to these problems. one that i think deserves serious consideration is the establishment of an independent court to review potential targeted killing objectives and to insure that they're backed by sufficient evidence it could perhaps be similar to the court currently used to authorize in the fisa system, surveillance and wiretapping within the united states.

whatever solution we o for it is probably not possible to have a perfect system that avoids all mistakes. what we should aim for is a system on the one hand permits legitimate military operations to go forward, but also provides a check on what might otherwise be the uncontrolled and arbitrary power of the executive to order killings particularly those targeted at u.s. citizens. i thank the subcommittee and i very much look forward to your questions. thank you very much. >> thank you, professor. >> we'll now hear from colonel martha mcsally. she served in the us air force 22 years. she was first woman to fly a fighter jet and command a fighter-squadron in combat. shares a bronze star among many others. she is current chief of operation at in africa. she helped build africom targeting team. she was in saudi operations center when predator drone was first used for

airstrikes. she served with our former senator colleague, senator jon kyl. she holds degrease from the air force a can academy and kennedy school of government and was added to the panel at the request of other friend an colleague, senator lindsey graham. thank you for serving your country and the floor is yours. >> thank you, mr. chairman durbin, ranking member cruz and members of the subcommittee. i come from operational point of view and speak in generalities from the unclassified level from my military experience use of remotely-piloted aircraft for targeted killings. i use the term remotely piloted aircraft instead of drones because that is part of problem. there is information campaign going on against us and word drone has connotation we have autonomous vehicles flying around and striking at will without a whole lot of scrutiny and oversight to them. so the military does use the term remotely-piloted aircraft to explain and to

try and paint the picture that actually takes about 200 individuals to keep one of these aircraft airborne for a 24-hour orbit and that 200 individuals includes the operators, the intelligence personnel, the maintenance personnel, equipment people, the lawyers and also is part of the process you have literally hundreds of other personnel that are involved in the process on a military side when you're actually conducting one of these operations. so i will be using the term rpa throughout my testimony. that certainly is one of the points to make. in my written testimony i explain that i think this issue is very important and there are very legitimate questions that need to be asked for the oversight roles that we have as when we're choosing if it is legal to use lethal force for targeted killings and if it is a good counterterrorism strategy to use that force. those questions are legitimate and need to be asked and that oversight has got to be tightened up. there has been way too much

i think vagueness and lack of clarity even in the information that has come out of the chain of command related to their legal argument and their strategy on that matter. i believe there should be separated into three questions. is it legal? is it good strategy? and then the third question is, if we've decided that we want it use lethal force, because it is legal and good strategy in the counterterrorism arena then what platform should we use? so i will be focusing on discussing that platform and then the process that we go through. it would be surprising to you perhaps a pilot would be advocating for use of remotely-piloted aircraft to conduct operations but in the course of my 22 years in the military i have extensively worked with remotely-piloted aircraft for a variety of different means. when we're on the regular battlefield you have a lieutenant pilot and airman first-classs on the ground making decisions to use lethal force with potential strategic consequences.

if they, hit the wrong target and there is collateral damage, then there's a great level of potential issues related to that wrong decision. when you are talking about the use of remotely-pilot the aircraft you have what i believe unprecedented level of persistence, oversight, and precision if you're choosing to use that as a platform. your other choices are fighter aircraft, cruise missiles, seals, artillery and other means of using lethal force but when you're using remotely-piloted aircraft, often times because a number of issues that have to come together and line up to include positive identification, geographic location, collateral damage assessment, friendly force deconflict shun and other communications that she had to happen it is often not practical because the targets are fleeting to use any of these other assets. as an example you would not want to wait and launch fighters from a certain base,

arrow fueling tankers, diplomatic clearances while all the stars are all lining up in a very fleeting moment that could, you know, basically those conditions could not be met in the next moment. so if you have a remotely-piloted aircraft overhead as those conditions are lining up and the process actually has a great deal of extraordinary scrutiny, you have the chain of command watching. you have the intelligence analyst watching. you actually have the lawyers sitting side by side with you. you can wait until the moment that you have identified the positive identification and all the criteria has been met and you can also abort at the last minute. if you launch a cruise missile for a lethal strike, usually 30 minutes of planning. 30 minutes time of flight and often took place you can not divert the missile as an example. remotely-piloted aircraft actually gives us the highest level of scrutiny and oversight and persistence and precision if you're deciding to have a lethal strike.

i look forward to the questions and discussion on this matter. also at unclassified level the process we go through in the military to achieve the different criteria before we're actually cleared for those strikes. >> thank you, colonel mcsally. our next witness is peter bergen. mr. bergen is director of the national security studies program at the new america foundation. best-selling author, widely publicized journalist. mr. bergen is cnn's national security analyst and fellow at fordham university center on national security. he worked as adjunct lecturer at harvard kennedy school of government and adjunct professor at johns hopkins school of advanced international studies. he hold as a ma from new college, oxford university. mr. bergen. please proceed. >> thank you, mr. chairman and senator cruz and the other members of the committee for the privilege of testifying. we at the new america foundation basically are being collecting data on cia drone strikes for the past three or four years and i'm not a lawyer but i'm, my

presentation will really be about kind of what has been happening in the drone program. here are some of the sort of main points. under president obama there have been 307 drone strikes in pakistan. that is six times more than president bush did in his four-terms or two terms in office. the total number of deaths in pakistan we calculate somewhere between 2,000 to 3300 roughly. the drone program in pakistan has changed. in 2010 there were 122 drone strikes. over time it has decreased. that is for a series of reasons of the there has been significant pushback from the state department, are we losing a wider war in pakistan in a sense? the price of a successful drone program is angering 180 million pakistanis one of the largest countries in the world a country with nuclear weapons that is quite a large price to pay. i think there is more discriminating program in pakistan as a result of this discussion. cia still has sort of an ability to more or less

override state department objections. larger discussion is won by the state department. increasing congressional oversight. more public discussion as there is in this forum. that, the senator, supreme court, justice brandeis a long time ago said, sunlight is the best disinfectant. i'm thankful we're having this public discussion. there are whole series of reasons the cia drone base in fallujah was closed there are fewer targets to probably kill. . .

>> so that's an interesting development. what was initially started i think as a program that would target high level members of al qaeda has evolved into a kind of counterinsurgency air force. you can say that's a good thing or a bad thing, but it's a fact that that is happening. where are the targets in pakistan? normally in north was used in. what is the civilian kashmir great? we've that it is to claim for significant overtime. initially in a sort 2006 it was almost 2%. 100%. now today confirmed civilian casualties recalculate about 2%. we add an unknown category of 9% because sometimes it's not clear

someone is a civilian or military. they dress the same. somebody is referred to in a press account a tribesman could either the taliban or a civilian. we are funding every significant decrease in the number of civilian casualty there's all sorts of reasons for the. one is drones, the drone as colonel mcsally pointed out, there is the smaller payload, better intelligence, president obama i think it's taken a more direct role in adjudicating potential strikes weather might be a civilian casualty. we've seen a strong droplet are still civilian casualties. were not the only group that looks at this issue. there is the long war journal and london-based bureau for investigative journalism. we are all fine of up to the same thing that the civilian casualty rate in 2012 is quite low. the united nations special, on this issue went to pakistan and had an interesting discussion with the pakistani rulemakers

and officials. they said to him there were 407 casualties in pakistan, which is pretty close to the number we think is correct. this is the first sort of official acknowledgment in pakistan at least on background that civilian casualty rate is much lower than present in the pakistani press. what impact is this having on our fight with the taliban? the best witness is osama bin laden and so. in the documents recovered in abbottabad can he was very concerned about the drone program. the amount of damage it was inflicting on his crew. you suggesting al qaeda should be camp, and harbor american drones to see what is going on. he suggested his son should move to qatar, one of the richest and safest countries in the world away from the tribal region. so we are seeing if it is having an impact and just to reinforce, the president's we are setting are clearly worrisome, potential. 70 countries have drones, three

of them have arms drones we know. it's very, very, the chinese are close to be able to arm their drones. you could imagine a situation where china deploys drones against uighur separatist using the same rationale that we just against al qaeda or the taliban who we deem to be terrorists. >> thank you very much, mr. bergen but our last witness on the panel has certainly made it personal sacrifice to be with us. mr. al-muslimi is a yemeni youth activist writer and freelance journalist. he has cofounded and shared several local youth initiatives in yemen. he currently works for a grassroots youth run foundation aimed in engaging yemeni youth and public policy dialogue. with the assistance of you state department scholarship, he studied in the u.s. during high school. it didn't the american university of beirut and graduate degree in public policy from the institution last year. mr. al-muslimi, i hope i

pronounced your name close to correct, thank you for traveling from yemen to join us today. looking forward to your testimony. please proceed. >> thank you, chairman durbin. and ranking member cruz, for inviting me here today. my nana's you mentioned is farea and i'm from a remote village mountain in yemen. just six days ago my village was struck by an american drones in an attack that terrified the region farmers. america has helped me grow up and become one entity. i come from a family that lived off the fruit and livestock under for my father's income rarely exceeded $200. he learned to read late in his life, and my mother never did. life, however, has been different. i employ them today because the state department supported by education. i spent and living with american them and attend an american high school that was one of the best

years of my life. i learned about american culture, i'm a fiscal basketball team, and learned that trick or treat on halloween. but it was an experience, the most exceptional expert was coming to know someone who ended up being like a father to me. it was a member of the u.s. air force. most of my years was spent with him and his family. he came to the mosque with me and i went to church with him, and he became my best friend in america. i went to the u.s. as an ambassador for yemen and i came back to human as an ambassador of the u.s. i could never have imagined the same time that changed my life and took it from miserable to a promising one. would also -- [inaudible]. my understanding is that a man was the target of the drone strike. many people know him, and the yemeni government could easily

have found and arrested him. he was well known to government officials and even to local government and even local governments could have captured him if the u.s. had told them to do so. [inaudible] my stories about my wonderful experiences have. the friendships and values i experienced and described to the villagers help them understand the america that i know and i love. now, however, when they think of america they think of the care they feel from the drones that over over there heads ready to file -- fire missiles at whatever time. [inaudible] one drone strike accomplished in an instant. there's no instant anger. the drone strike as the face of

america to many yemenis. i have spoken to many that goes of drone strikes like a mother who had to identify her innocent 18 year old son's body three video and strangers cell phone. or the father who helped his six-year-old children as they died in his arms. i spoke with one of the tribal leaders presenting in 2000 at the place where the u.s. cruise missile's targeted a village. more than 40 civilians were killed, including for pregnant women. the tribal leaders and others tried to help the victims but their bodies were so decimated that it was impossible to differentiate between the children, the women, and their animals. some of these innocent people were buried in the same grave as their animals.

in my written test the upper leather detail about the human cost of this and other drone strikes based on an interview i conducted. i have a personal experience of the fear they call. late last year i was with an american journalist. suddenly i heard the buzz. the local people we were injured and told us that based on their past experiences, the thing hovering above us was an american drone. my heart sank. i felt hopeless that it was the first time that i truly feared for my life or for an american friends life and human. i couldn't help but think that the drone operator might be my american friend with whom i had the warmest and deepest relationship. i was stunned between this great country that i love and the drone over my head that did not differentiate between me and some americans.

is one of the most divisive and difficult feelings i have ever encountered. i felt that way when my village was also bombed. thank you for having this hearing. i believe in america and i deeply believe that americans truly know about how much pain and suffering the u.s. airstrikes have caused, and how much they are harming others to win hearts, minds in yemen and hearts and minds of the yemeni people, they will reject this devastating program. thank you. >> thank you, sir. [applause] >> please. general cartwright come in a recent speech before the chicago cubs on global affairs you noted your concerns about potential reaction to targeted strikes. nspg said if you're trying to kill your way to a solution, no matter how precise you are, you upset people even if they are not targeted.

general stanley mcchrystal has also stated that the resentment created by a american use of unmanned strikes is much greater than the average american appreciates. mr. al-muslimi's testimony provides a chilling example of how these strikes can undermine our efforts to win hearts and minds of the very people we are relying on to provide us intelligence and ultimately be our allies. are we trading short-term tactical success of killing individual targets for the long-term strategic failure by sowing widespread discontent and anger? >> senator, i can't talk to specific operations. >> understand. >> but i am worried that we have lost the moral high ground for much of the reasons that the witnesses have talked about. and that some element of transparency in process, in decision-making, in the understanding not just of those who actually make decisions, but

of the people of this country and the people of countries that we are working in, is going to be a sensual to find our way back up moral high ground. i believe that these people understand what the options are and the choices are and that they are reviewed and they are basically as we do in our judicial system, in an adversarial way, looked at with a very jaundiced eye about whether we want to proceed or not to proceed, that we can move in a direction as far better than where we are today. but i believe that in several areas around the world the current drone policies have left us in a position where we are engendering more problems and we're solving. >> wouldn't you also, i'm sure acknowledge, that because of the classified nature of information that is being used to target and protecting the sources and methods which we're using to find the information makes transparency if not challenging and possible?

>> i was a challenging but not impossible. in other words, it is not necessary to provide the secret sauce to provide an understanding of why you're doing what you're doing, how you are making the decisions and why they are necessary, and that you are reviewed alternative choices in that decision process. i think that's important part to get out. i don't disagree that, again as i said in my testimony, that the policy we are following is a policy that i support. but it's the means and the methods that i think we're to take a look at and seriously reflect on. >> professor brooks, just looking down the panel to see who might've been here in 2001 to cast the vote on the authorization for the use of military force. i could remember there were two votes. one relative to the invasion of iraq, and 23 of us voted in the negative. and then the second vote which we consider to be the direct answer to 9/11 for the invasion

of afghanistan. the direct assault on al qaeda and the virtually all members of the senate voted in favor of the. i believe all of the day if i'm not mistaken to at the time that i don't think there is a single senator who would say that they envisioned 12 years later that we would be ending the longest war in our history, and that we have created an authorization for an ongoing warlike effort against al qaeda operatives and their associates. so i guess my question to you is whether or not the aumf, the authorization for use of military force, is adequate to the task for protecting america when we are still menaced and terrorized by those who do is evil? and whether or not there needs to be a revisit of the aumf to determine whether it should be stronger or more specific?

>> senator durbin, i would be inclined to urge congress to repeal the 2001 aumf. i think that the president already has ample power as the commander-in-chief and as the chief executive of the united states to use military force when it is necessary to protect the united states from an imminent threat an imminent and grave threat. but i would've this is the word imminent and grave. i think an absence of an authorization to use military force we would very likely see the executive branch perceive itself as a more careful analysis of the importance of using military force, particularly in context where it is a targeted killing in a foreign country which raises sovereign issues among other things. i shar show my colleagues viewet there's nothing inherently wrong about the use of targeted killing as a counterterrorism tool, but i do think that we have gotten well beyond as we suggest what the drafters of the aumf and those who voted for it

could ever have imagined as we have stressed -- stretches from al qaeda and actual language of the authorization which focused very squarely on those with responsibility in some way for 9/11, and on preventing future attacks such as that on the united states. we've begun to shift as my colleagues have said to those who you might say or further and further down the terrorist fujian, not switching your operatives but lower level militants and suspected militants. we've also shifted to focusing on organizations that it's not that clear would fit the aumf definition such as somalia al-shabaab in terms of either any link to the 9/11 attack or in terms of any capability and inclination to focus on the united states. >> i guess what i'm driving at is this. i think the definition of our enemy in that aumf as al qaeda and associates could certainly be challenge today in terms of terrorism threats to the united states.

i think some have gone far a field from the original al qaeda threat, but still are realistic threats but to the definition of our enemy or any combatant would have to be carefully considered in the context. but secondly i would think that we now our challenge to define the battlefield and we can engage in targeted killing. and what it takes to authorize us to go into somalia, yemen, pakistan, afghanistan, or nations in africa. where is that battlefield? it seems like it can change almost on a daily basis and still be a threat to the united states. i would say having been through this debate in the house and the senate over the authority and responsibility of congress to declare war on behalf of the american people, that i don't think our founding fathers in their wisdom could have envisioned quite what we are facing today in trying to keep this country safe. senator cruz.

>> thank you, mr. chairman. i would like to take the opportunity to welcome and thank senator grassley, who is ranking member on the full committee, for joining us at this important subcommittee hearing, and with unanimous consent i would like to offer senator grassley to ask his questions before i ask mine. >> go ahead. >> very well. thank you and welcome, senator grassley. [inaudible] >> thanks. >> you're welcome. >> i appreciate each of the witnesses coming here and presenting very learned and calm and very provocative testimony on this critical issue. i would like to begin by posting to each of you the hypothetical that i post to attorney general holder. because it seems to me on the question of what's the purpose of the use of legal force, there are ins of the spectrum that are relatively easy to answer and then there are areas in the

middle that raise far more complicated legal questions. seems to me that there is no serious question that if a foreign national is overseas and is actively taking up arms against the united states, that lethal force can and probably should be used against that foreign national in those circumstances. likewise, it seems to -- it seems clear to me that the answer is simple answer for. and the hypothetical was, if the united states citizen is on u.s. soil and we have intelligence to suggest that that individual is a terrorist, is involved with al qaeda. but at that moment that individual poses no imminent threat. indeed, if a u.s. citizen is sitting on u.s. soil at a café in northern virginia, does the

constitution allow the united states government to use a drone to kill the u.s. citizen on u.s. soil? now, in my view the answer to that question is simple and straightforward. it should be absolutely not. it's the question of if i could post all six of the. does anyone disagree with me on that? does anyone disagree that the constitution does not allow killing a u.s. citizen on u.s. soil if an individual does not pose an imminent threat? >> i agree with you. >> well, i am encouraged by the answer. i wish the obama administration had accepted his subcommittee's repeated invitation to send a representative, because the last time the attorney general was here he was quite reluctant to post that after that all six of you just gave. seems to me there are many difficult questions about the use of drones in our current policy and using them overseas.

there are strategic questions using a drone strike to take out a terrorist or even a leader of al qaeda means necessary that individual not be apprehended. that individual not be interrogated. we will gain no actionable intelligence and we will not as result of any interrogation be able to prevent acts of terror and the future. and, of course, with a drone strike, the risk of error is such that if the individual is not who we think it is, there's no process to correct that mistake. the consequences of mistakes are significant. that being said, the ambient of this committee is the constitution and that's the principle focus of this hearing. so i would like to ask a question of professor brooks and, which it seems to me that on the question of the constitution parameter, if we agree with the two extremes i suggested, that you get into the

whole gray area between. and i want to suggest for possible criteria. and get both of your thoughts as to how each of those criteria impact the constitutional question. the first is the individual that is the target of a drone strike, whether that individual is a united states citizen, whether the individual is a legal permanent resident, or whether the individual is a foreign national. the second possible criteria that may be relevant to the constitutional inquiry is the location. is that individual on u.s. soil, or is the individual overseas? a third possible criteria and is whether that individual is actively affiliated with a foreign hostile for such as al qaeda. and a fourth possible criteria is whether that individual poses an imminent threat of violence. and i went one of the concerns i

have about the white paper that was released to nbc is the definition of imminent threat in my view that this administration has put forward come is exceedingly broad and so i would ask both professor brooks and professor somin to address your views of the constitution relevance of each of those four criteria, and to the extent imminent threat is important, how should properly be defined so it is a relevant qualifier? >> thank you, senator. i think that those are perfectly reasonable criteria. i think the administration as well has put up very similar criteria. the trouble is the devil is in the details as you suggest. we can say, well, if someone meets the criteria of being a member of a foreign force that is taking up arms against the

united states or something like that, then they become targetable. no one would disagree with that on broad principle. the trouble is who decides what constitutes evidence, what if you make a mistake and so forth. the same is true for all of us other criteria. no one will disagree with a notion that the united states has the authority, indeed the president has the inherent authority, aumf are no aumf to use military force in the context of the threat of an imminent and serious attack against the united states, but as you suggest, that term imminent has gotten pretty pushy in the administration's legal memos that we have seen so far. i think that that's why i would highlight not so much the criterion, the abstract but creating adequate mechanisms to ensure sufficient transparency consistent obviously with the classification concern and to ensure oversight and accountability in the case of abuse and mistake. one other thing i would add

though is that coming to me, we have a constitutional question but we also have a broader rule of law question. in the declaration of independence our forebears spoke of inalienable rights that all men had come and today we will talk about human rights. i think that obviously the fact that some is not a u.s. citizen, while it does mean that they do not have the specific protections of our constitutional law, obviously should not make us care less about their legal recourse in the event that they are wrongly or abusively targeted. and again while i'm fully confident in my colleagues come in the administration making their very best effort to prevent abuse in error, i don't know that that is very firm foundation for think about the rule of law more generally in the future. >> thank you very much for the question. i think each of the four points you raise are potentially

important in different situations. let me briefly tried to give a few thoughts on each of them. one is the question of whether the individual is a u.s. citizen or a foreign national. as i noted in my initial testimony a u.s. citizen can potentially be an enemy combatant in a war, and that does make him or her a legitimate target if he is. however, that our special constitutional problems arise where doing that might be a violation of the fifth amendment. less clear whether the fifth amendment applies to foreign national outside of u.s. soil. obviously, even if it is not targeting an innocent civilian, it is still illegal under various domestic and international law even if they're not u.s. citizens by the constitution issue might potentially be different. the question of location, your second criterion that you raised, i think is more fully covered in professor brooks written testimony. i would tentatively suggest that there's a reasonable distinction that should be drawn between terrorists or perspective

terrace located in area where it is the government is supporting the terrorists or they don't have meaningful control over what is going on in their area versus countries where there is a rule of law and what we can legitimately resort to working with the government and apprehending these people by peaceful means, released without resorting to lethal force in the first instance. third, i think it does make significant difference whether the individual in question is actually affiliate with al qaeda or one of the associates or an independent operator or affiliate with some of the unconnected group. the authorization for the use of military force doesn't give the president the authority to target any and all potentially hostile groups. it is specifically limited to quote those nations organizations or persons that the president determined plans authorized, committed or aided to terrorist attacks that occurred in september 11, 2001 or harbored such organizations. so it seems to me that why we

are at war with the organization listed in the aumf we are not at war with all potentially dangerous groups and to the extent that targeting has gone beyond that level, then the laws of war may not apply in the same way. it makes a difference. one of the things i urge in my written test one is that congress considered not abolishing the aumf but clarifying it to more clearly what, if any, other group b. on it is listed are legitimate targets. finally, the question of imminent threat i think as a note in my testimony, written testimony, that the groups that we are at war with we can target and even if you're not an imminent threat for people who are not covered by the aumf, i think how imminent the threat they pose is an important issue and one that perhaps we can address in more detail later. i do want to take too much time. >> thank you. >> thank you very much. before recognizing senator franken i ask consent and a statement by the chairman of the

committee, chairman leahy. without objection will be entered. senator franken. >> i want to thank the chairman for holding this important hearing. obviously, drone strikes have transformed the way we conduct war and this treasure mission has given rise to local opposition and a sense of public debate. you know we are in, giving him use strange territory when senator cruz and i have the same questions. eminence was one i want to talk about this new standard which seems really brought to me, too, senator. i think this debate and discussion is important, which is why i continue to believe the legal justification for these strikes needs to be made, need to be made public in suitable form.

i went to your room and looked at some of these memos, and after reviewing them i do not understand why the expert read actors at the department of justice could have just stripped out any of the national security information, the sources and methods and the need to be redacted and make a legal analysis public. i was also disappointed that the administration did not send a witness today as was the chairman and ranking member. i have long argued that the department should not practice of secret law, and should make all of the office of legal counsel's opinions available to the public. i think transparency and accountability are important, especially for an issue as sensitive as this. i'm also troubled that this

hasn't been released to congress, all the memos related to the target killings. anyway, as far as targeting, and the question that the ranking member asked, this is not my question. it came from another senator. he hasn't authorized me to ask this, or she, all right? i could be a secret agent, too. but this, just in terms of targeting u.s. citizens, we had a situation in boston where we had a guy in a holed up in a backyard in a boat. and he for all accounts had explosives on him. and they did send a robot in actually to go in, to take off

the t.a.r.p. over the boat, but isn't it possible that we could see a situation in which we might want to take that person out in a different way, as on as it is for me to ask, but it is but it feels odd but anybody have an opinion on that? i mean, the attorney general answered the question about actually of a senator paul's question, does the present have a freaky as a weapon is going to kill an american not engage in combat on american soil. eric holder said no, but does anyone have an opinion on that? >> i would, i would approach and i will let the lawyers talk about the law side of it, but they were in that scenario come and many other hypothetical scenarios that you walked through, inside the united

states there are so many other means by which we can approach this situation safely, and ensure that if the last act was for the individual to stand up and put their hands in the air, then we would not revoke the right for the individual to give up. and so to me to stand off and shoot in the case of a drone which is normally not something i -- >> well, we would only resort to that obviously. this is maybe arguing angels on the head of the pen so i will move on. professor brooks, sorry. >> deal i think i would say is i think it's very important to distinguish between the kind of weapon and the kind of legal framework. a weapon that is released by a remotely piloted vehicle or robot is just a weapon but we have very clear rules and the domestic law enforcement context about when police can use lethal force. those are clear as long as we have a clear legal framework, the lethal force is sort of irrelevant what it means you use. the problem is not the drone

hypothetically being used as opposed to something else but i think the problem is whether we think that we have to abide by the normal rules that govern please use of legal force or whether we think we are in a locker for environment as professor somin noted earlier. you can target an enemy combatant while he is sleeping. he doesn't need to pose any imminent threat. >> since we're talking about the method we use, and and we're talking about blowback, mr. bergen and mr. al-muslimi, very disturbing testimony. and this might be due, professor brooks or to mr. bergen, or to anyone, we have blowback when we do demand airstrikes -- when we

do manned airstrikes. what is the difference? in other words, what is, i think you wrote in your testimony, i thought i was here, professor, for your oral testimony, but that they are civilian, obviously civilian casualties when we do manned airstrikes. is there a qualitative difference? on income is there really? welcome anyone who wants to answer that. >> senator franken, this gets to the heart of what others try to get at my testimony, which is one should answer the question that is legal to do a strike, and that it's good strategy to do a legal strike, when you're then selecting a platform, a remotely-piloted aircraft actually gives you better precision with a small warhead with assistance overhead with the ability to abort at the last minute. with a whole chain of command

and lawyers watching with intel analysts who are not getting shot at. so once you decided to actually conduct a strike, the rba's provided unprecedented persistence and oversight. when we are using even ground forces, special operation, artillery, fighter aircraft which i've done many times, we do not have that same level of oversight. you often have in some cases individuals on the ground talking with aircraft overhead who, you know compass but he has just been shot up and their perspective is skewed. so you're making decisions in the heat of the battle. we do that with great precision as well but in this case when we're talking about operations and we're having to choose the platform, oftentimes we're talking about places where we don't have american forces and then have to decide whether we want to risk american forces to go into it on the ground or in the air. the rpas to give us an asymmetrical capability where we don't have to risk american

forces. that is not a bad thing that we are not risking american forces once we've decided it's important to conduct a legal strike. so this does provide greater legality and persistence and the ability to abort than other assets. >> just one small comment to that question. i think the key point as i tried to stress in my right investment is that what matters is not whether we're using a drone or a bomb or a plan or even a sword or dagger, that's not what matters from a moral or legal point of view but what matters is whether choosing the right target. if we have chosen the right target in where and how to use all appropriate weapons. and i think would be a mistake to give any particular technology, particularly -- >> i'm -- >> more accurate and discriminating other alternatives. >> and mr. al-muslimi raised his hand, and this, what i wonder is, and i know, i think you'll speak to this, is that this new type of warfare, and mr. bergen

has spoken to the number of countries now, 70 that they are in, is it a different kind of blowback? is very different kind of reaction because of the very nature of the? >> yes. i think the main difference between this -- al qaeda propaganda of jiminy is in or with you know states but the problem of al qaeda and if you look at the war of yemen, the war of mistakes your dumbest the less mistakes you make the more you win. the drones have simply made more mistakes than aqap has ever done. you are also neglecting a very simple fact which is you actually can capture this person it is not impossible you could have captured this person and that is a big blowback. aqap power has never been based on how many members it has,

whether that's 1000, or 10,000 actually. the difference is not that much. it is how much logic it has in the ground at how much you convinced yemenis that they're in a war with the united states. and the drones have been -- [inaudible] to approve that they are. and i think that is a main blowback, especially if there is ground forces. and have information from them. >> thank you for that, that chilling perspective. >> thank you. i understand senator grassley will have a chance to ask. >> first of all, permission for a statement in the record? >> without objection. >> professor soma, i'm going to immediately go to a question instead of a lead-in because as a follow up on the discussion you had with senator cruz. is the current aumf broad enough to encompass targeted strikes

ordered by a president or in this case president obama come or should congress broaden the aumf in order for these strikes to continue? >> so without knowing the full details of all the targeted strikes that have been done, it's hard for me to say which of them come if any, can't be covered by the aumf. though i suspect based on what the public record that some are at least questionable. i think congress should try to amend the aumf to more precisely define what kinds of groups we can target if we do want to target, i think we do some groups that are not covered by the text of the aumf, that ideally what we want is an ability to target organized groups that are waging war against us but at the same time not give the president a blank check to target whatever groups he or someone else in the administration might consider, it might be a good idea to go after even if they're not in a war like posture but i don't think we should completely overuse are completed repeal the

aumf. but i think some revisiting amplification is definitely desirable. >> do you think the constitution provides a sufficient basis for the president to order these targeted strikes absent reliance upon that law? >> it depends on what strikes we're talking about. so, strikes that do deal with imminent threats defined relatively narrowly could perhaps be justified as defense against attack. but beyond that i think one can not launch strikes against groups that are not covered by the aumf. in a way that we have seen in at least what is available on the public record. >> i didn't direct this to you, colonel mcsally, but what's your view on my last questions about the constitution versus absence reliance of bombing the aumf? >> i'm not a legal expert but i will say that article ii of the constitution, if the target is an imminent threat then that

clearly is authorization in and of itself. where aumf comes in is when you don't have that imminent threat criteria, but you al qaeda, al qaeda leaders, al qaeda affiliates that are specifically designated to the intelligence process in order to allow them to be legitimate targets. so just speaking broadly and in my work in africa command which i think has the highest level of scrutiny in the areas that we are talking about, it was a very high level in order to make the case that individuals or organizations fit the criteria that was very high and was discussions were at their highest level of the chain of command before anybody was approved. >> next question for professor brooks and professor somin, you both suggested today that one of the problems with the current drone strike procedure is oversight specifically, who determines the target, how they do so at how much evidence they

might need. one solution some embrace is an independent court the previous administration targets hard to drone strikes similar to the current court that refused foreign intelligence operations. critics of this proposal note that a court would be misleadingly comforting to the public because they are not experts in warfare. further, the use of such courts raises concerns. pushing, do you think that a special court is a good idea to provide independent oversight of the administration targeted killing program? and then let me follow up, would such a court be constitutional? >> i had a little trouble with the mic. in brief i think you would because additional and certainly most agree the fisa court, there can be legitimate questions about how such a court would be

set up and how it would be run. some scholars i saw in my written testimony have discussed this in some detail. i think the issue of not being expert in ostensibly be overcome by some to appointing lawyers and others to do in fact have a background in relevant military issues. is always of course the danger of false comfort or complacency i think such an institution by providing an outside check on executive discretion can at least prevent the most serious abuses back and possibly arise. nothing can solve all our problems completely, but our goal should be to lease to try to minimize them and reduce them relative to what otherwise might occur. >> senator, i agree that i think one could devise such a court that would have constitutional muster. i would know, however, that many of the issues associate with the court that would approve in advance targeting decisions could be a limited by focusing instead on a court come if

congress were to create a statutory cause of action for damages for those who had been injured or killed in a piece of our mistake and drone strikes you can have a court that would review such strikes after the fact which might eliminate a lot of the problems associate with having that in advance. was to create a pretty good mechanism that would frankly keep the executive branch as honest as we hope it is already and as we hope you will continue to be into the administrations to come. i think that there is no inherent reason also that such a court would need to operate in the extreme degree of secrecy that we have seen the fisa court. there's no inherent reason that you couldn't have declassified portions of opinion and i think that something like that is not the only potential solution to the first oversight and accountability problems, but i think it would certainly be one of the appropriate -- debacle long ways towards reassuring both u.s. citizens and the world more generally that our policies are in compliance with rule of

law norms. >> my last question would go to professor somin. in your statement you identified two key issues with the administration's current approach on drones. first, who in the administration decides who should be targeted, and second, how much proof they need to actually order a strike? you know the administration white paper did not actually answer these struggling questions. indeed, we've seen that the administration's reluctance to share its process with the american people. to questions. first, do you think it would be beneficial for the administration to publicly disclose this current drone targeting procedure so that the people know how those officials determine who to kill during targeted drone strikes? and second, what do you think would be the proper burden of proof in these targeted drone strikes? >> senator, i think those are both good questions. like many of the other panelists and the center of the subcommittee, i agree it would

be desirable to disclose the legal basis and criteria that are used obvious a consistent with not disclosing classified intelligence and methods and sources and the like but i think it is legitimate to ask the administration to do that. in terms of what the burden of proof should be, i think and i'm not sure if a clear hand on the precise exact standard realistically it probably should be lowered than beyond a reasonable doubt standard that we use in criminal cases because of the nature of work, probably doesn't allow proved to the high level but it should be more than minimal level of proof. some scholars have proposed various standards of proof, and i think that ultimately we should aim for a standard that is realistic in war but also provides us with at least a substantial degree of confidence that we are not targeting people recklessly and that we have at least substantial and extensive intelligence backing the decision. >> thank you, mr. chairman.

>> and thank you, panel. >> thank you, senator grassley. senator blumenthal. >> thank you, mr. chairman. and thank you for holding this hearing, and thank you to our ranking member as well. you know, i think we are wrestling with a lot of these profound questions, and wrestling on a very bipartisan basis, as you have seen because we are struggling with issues not only of constitutional law but also of conscience and conviction and morality, not to mention the profound foreign policy application that may be involved. and i want to thank mr. al-muslimi for giving us the insight into the chilling unintended consequences of possible mistakes in this area. and i have to assume they were unintended consequences, because

simply we have that faith, and good intentions of our military and other decision-makers who are guiding this process. but stepping back for a moment, one question on my mind is whether the rules applicable to drones, and there in the title of this hearing, call them unmanned aerial vehicles or read multi-piloted aircraft, whatever they're called, whether those rules really should be fundamentally different than they are for any targeted strike. because colonel, as you pointed out, when the decision is made to do a targeted strike, assuming that decision is justified by imminent threat or all of the other criteria, then we have a set of tactical

weaponry at our disposal. they may be boots on the ground, fighter aircraft, cruise missiles, or artillery. and very often remotely-piloted aircraft are more precise, quicker, and more reliable with less cost, both in terms of collateral damage and potential threat to our own troops. and so i guess the question on my mind is, should the rules be any different for this new form of weaponry? the rules are obviously different for nuclear strikes in some sense. and we are developing rules for cyber warfare, as general cartwright has made the point very aptly and powerfully. but let me begin, colonel

mcsally, and then perhaps to you, general cartwright. knowing the nuts and bolts of this kind of weaponry, should the rules be any different for remotely-piloted aircraft, a term which i agree probably more aptly and accurately describes this kind of weaponry and the other targeted strike. >> thank you, senator. absolutely i think the answer is no. the rules should not be different. a remotely-piloted aircraft is simply a tool to meet our objectives once we've decided that we want to meet those objectives and it's illegal to meet those objectives. this reminds me a little bit about after world war i when our pioneer of air power billy mitchell was trying to make the case that we could take out naval ships with it. nobody could believe in. we thought that was ridiculous but then had to make the case and there was a whole lot of angst over using this new tool of airpower in order to meet our objective.

we eventually get to the point where very comfortable using air power in certain circumstances versus ground forces o or a navl gunfighter commit our military objectives. i think this is a similar transformation that we're going through, this discussion and debate is all certainly worth having and i think where we need to have our focus is the transparency on the legal argument at the transparency on the justification for our counterterrorism strategy for use of lethal force. and focus it there. and then keep this remotely-piloted vehicle discussion, remotely-piloted aircraft as a tool that we are using that is an asymmetrical advantage that we have and if we're in a fight, it's okay to have an asymmetrical advantage. you don't have to risk american lives if you need to use lethal force to meet your objectives, so why wouldn't when they have the capability to do it in a way that is cheaper, more persistent and less risk to american lives? i think the rules and should not be different and i think the discussion is were the. but i will also say from a

military process there are really two elements that we go through. one is how do we approve an individual to be an approved a target? the second process is then what do you go to in order to get approval to strike and to conduct a strike? and so this is what i think we need to be focusing the discussion. this process right here also you could raise or lower the bar based on discussions here today of are we hitting high level or lower level, but from my experience there's a whole lot of precision scrutiny in the second part and when you to be focusing on this first part. >> do you agree, general? >> i do agree. and i think one of the opportunities here that remotely-piloted aircraft can do, offer us, is that there is more decision time, therefore more review time, therefore a better opportunity to be sure. there are more eyes on the issue in an environment where they can make decisions. so it offers us opportunity that we probably haven't taken advantage of.

and conversely, anybody who is my with a history of war knows that abuses in the use of aircraft, bombing, carpet bombing, involving unintended damage or perhaps sometimes intended damage to civilian population is endemic to the history of warfare are in sometimes used by our enemies and, unfortunately, sometimes in the past used by the united states. so we are dealing here with a set of questions that has persisted for some time. let me, though, focus, and he can do, colonel mcsally, because mr. al-muslimi raises the issue and i think it's a very legitimate issue, that somehow there is the appearance, the perception of greater damage and possible mistakes associated

with this kind of weaponry, this tool. is that a fair criticism, do you think? >> well, i can't speak specifically about operations in this country, but i can say that the capability does exist to make sure that we minimize a civilian casualty. and a process that i've been through and i'm for money with is one where we have to meet a very high level of positive identification once a target has been approved as a target, that we have met the criteria of positive id, that we've met the criteria of geographic location with a variety of different sources. again, with high confidence. and that we've done a very thorough lateral damage assessment, which is very detailed process that we go through. again i would encourage you all to get classified briefing on that process and how we do that. and to make sure that we do not

have unintended civilian casualties. so we do have a process available, and in the case you so eloquently have been sharing about the impact of some of the strikes going on in your country, i think we do need to take a look at the scrutiny of who is on that list, a game in the first portion, and then making sure that the operators have the appropriate bar of positive identification geographic location. but we do the capability and we've done in the past. and his testimony shows we need to ensure that that is very high because the unintended consequence of our very severe. >> my time has expired of the chairman allows it, if mr. al-muslimi has any comments. >> of course. >> thank you. i would say one of the things that are needed the most is say who is on this list. a lot of the mistakes also that have happened is i do not know if this person as a target or not, therefore he is welcome anywhere he goes. that is made a lot of mistakes that have happened. and a lot of killings have

happens to be because people did not know that this person is a target. and not just as he was not tried to be arrested to another issue that has blowback of them making people feared the u.s. more than during the aqap. a man, -- [inaudible] go to sleep or i will call your father. now they say, go to sleep or i will call the plane. that has shifted the whole conversation or the whole -- [inaudible]. it's not just in the blowback of this, specific example but more if the killing of the government which is killing, making it look like the american public -- [inaudible] this has gone much more. >> thank you. >> sender, just real quick. i worry here.

what we have seen with drones is that without precise targeting on the ground, precise information and intelligence that is verifiable, that that's generally when we have errors. and so we need to look at that end of the process. and in whatever process we put together we need to ensure that the intelligence that drives the targeting is also part of the scrutiny. if we miss that, then we rely as you say just on the drones, we have challenges. >> thank you. thank you, mr. chairman. >> senator graham. >> thank you, mr. chairman. i would just like to say for the record that no system is perfect but generally speaking i want to applaud the obama administrati administration, what i think an aggressive and responsible use of the drone program, particularly in parts of the world we don't have ground forces whole lot of control to make the rest of us safe. so i don't get to see many good

things about president obama in south carolina, but i will say that i think he is serious or i think he is thoughtful, and i think he takes his responsibility when it comes to targeting people in a very commander-in-chief like way. general cartwright, as a marine when you are ordered into battle by your commander-in-chief, and you obey his orders? >> i do. >> so i find it a bit odd, quite frankly, that we're going to give the commander-in-chief under the constitution by the way, the authority to order our own citizens into battle but they don't get to go to court. you know, the marines don't get, you know, i think that's a dumb decision, i want to go get a judge to say, hey, you shouldn't go. my belief is that there is nothing more than vague to being

commander-in-chief than being able to order people into battle, and being able to suppress the enemies of this nation. so if you want to talk about transparency, count me in. ..

>> it goes to the question of the imminence. >> the theory being that basically when it comes to the al qaeda and taliban it is basically to hit them before they hit you. >> with get the victims of the strikes overwhelming now from the taliban so who do they pose the imminent threat? >> talk about that. general cartwright you are in afghanistan. you walk upon taliban men that are asleep. do you have to wake them up first? >> no. of legitimate military target. >> that is the point*. once you are designated as an enemy we don't have to

make it a fair fight or wake you up. we will shoot you. that is the point* and here is the problem. how'd we know if you are the enemy? that is a legitimate inquiry. so what i am suggesting is we back off and look at the goal we are trying to accomplish. what is your name again sir? i don't want to mispronounce your name. i have been to yemen. a country of great turmoil and conflict. >> they do have a lot of problems. dr. bergen to revise the president to the arrest in london with the pakistan the government? >> it was rejected. >> can you imagine if it came out that we took the

pakistan government he is over here go get him and he got away. we would have eaten president obama alive. the reason obamacare did not do that with all candor you cannot trust the pakistan government to pick up a modern. with all due deference to your country, there are places in your country i wouldn't tell anybody about what we are up to because i think a person we are trying to capture or kill would wind up knowing about it. your point* is why don't we arrest the guy in the village? nothing would please me more to address them to interrogate them but the world in which we live in is if you share this closely held information, colonel mcsally you will tipoff the people we try to go after. do you agree with that? >> in some cases, absolutely , sir.

>> so put people in president obama is shoes. what do share and who do share with? to do pull the trigger on and who gets up pass? he above all others in the next person to occupy that office needs to have a reasonable amount of difference does not unchecked power. we have one commander-in-chief. we cannot have 535 commander in chief's. mr. chairman, i am glad we have this debate that when it comes to the loss of four, to the two professors is it domestic and -- different in domestic criminal law? >> yes. >> the purpose of law of war is to win the war, neutralize the enemy enemy, and gather intelligence. the purpose of domestic criminal law is to solve a crime, bring people to

justice to be acquitted or convicted. of you agree those two are fundamentally different? >> absolutely. >> yes. >> the greek -- the differences between fighting a war and fighting the crime. but there is, dr. bergen no air force to conquer or navy to sink we are fighting an ideology that is transforming itself all over the globe. we need to look around am brodeur and the ability to go after the enemy changing day by day but within the values of being an american. please don't mistake my zeal for defending the country that i don't have values. senator mccain and myself and others say don't torture the detainee's. when you capture someone, we

don't cut off their heads heads, we give them the lawyer. if makes us better, not weaker so help me in for fighting the war within our values but ii torture anyone because that is not what we are about and it hurts us more than it helps us. but i do understand the difference between fighting a war and fighting a crime and that will work with my colleagues any way possible to make sure we make the least amount of mistakes as a nation but the one mistake and will not tolerate is a mistake of believing we are not at war. >> senator? >> thank you, mr. chairman and for you joining us today. to start with the professor, you note that critics of the administration have white paper on this issue with the

weaknesses of the three requirements outlined in that paper and under the analysis that must be met before a u.s. citizen may be lawfully targeted with a drone strike. you argue because those requirements apply only when the individual of the senior operational leader of al qaeda or another associated force, the memos weakness may have been mitigated. you state that the senior al qaeda leader qualifies as a legitimate target even if he does not pose the imminent threat but you also note the real difficulty lies in determining if someone is or is not a leader. this puts us in an interesting spot. our constitutional system requires us to a cord of a

degree of due process. before they are deprived of liberty or property or most importantly, life. do you tend to agree it is essential we have in place some type of procedure to make sure people are not deprived of life in this instance, absence of an adequate procedure that can be used for determining if somebody is a terrorist leader? >> i do agree. that is the central issue that the other witnesses have as well that if somebody really is a terrorist the part of the group that is at war with us even with a legitimate target, sleeping in their bet i think osama bin nodded was asleep when he was targeted but at the same time we do need procedures

in place to insure it as the u.s. citizen we are shooting the right people obviously there has to be in place procedures within the executive branch itself to mig might -- met a guy is the risk of error we cannot have as much procedure in more as we would have with the ordinary law enforcement but that doesn't mean the issue should be completely left up to the discretion of the president and his subordinates. >> you have any indication as to how this administration believes it should move forward? how it should make this determination that accords the appropriate degree of due process? >> may -- other witnesses may be more qualified than i am. the difficult issue is so far the administration has not made public a lot of its procedures so i join with

those who have stated more publicity on this is desirable to protect classified intelligence. once we know more we may be a better position to assess whether the procedure is radical or not. >> i appreciate that. i want to ask a question i will give each of you the opportunity to answer but with time constraints you will have to be brief. what do you think are the obstacles to providing for some kind of independent judicial review? the executives determination that a u.s. citizen is a terrorist leader therefore potentially the subject of davy sold drone strike? >> there are so many scenarios you could go

through but if you are in a declared area of hostility which is the basis of the questions of senator graham then you have a set of rules associated with americans that might be in that population of tartabull people and it would be difficult to stop to have the court case for all of them outside the declared area of hostility then you have more the way to have a discussion. i personally believe in having a process on the backside, the accountability process that says we knew going in we set up rules. they may not have worked all the time. were errors made? sure the victims' u.s. citizens or not, has been afforded more rights? should they be compensated? what should happen at this stage of the game like the

examples we heard today. rather than putting it of the of war construct. >> i think there are no obstacles in some sense to creating a more fair and transparent system which u.s. citizens there not wrongly targeted all of the reassurances we heard about with the remote pilot aircraft to ensure real get the people we target and not innocent civilians are only as good as our intelligence or wise as our strategy but that said the political barrier to develop some better mechanism to ensure

people based on a reliable process that we see this as a black and white issue there is war and crime and completely different rules and legal systems but what we have with globalized terrorism with al qaeda and other groups is something that aside traditional armed conflicts or large-scale organized crime that is the reality and requires tools both military tools and mote tools other more traditional associated like disrupting financing communications. right now a lot of people are talking past each other. if you don't have a war you can do that but that is the trouble we have trouble if we should apply the war or crime paradigm.

>> you're not disputing the bright lights that go on. >> absolutely. on the extremes we have easy issues that get harder and we need to get more creative >> i just realized i have created a grave error punishable by death. should i reasoned that question or proceed? >> he says suspend the death penalty. i appreciate that. [laughter] >> i am conscious that what is hanging over our head to be brief so there are two obstacles to insure a better system one is we rely on intelligence that in some cases are iffy, second, the review mechanism that we should be independent unless we act in a swift or lose the opportunity to attack a

legitimate target these are genuine problems but not able to overcome them with the fis the court there have been ways propose to do that from the university of utah that the government of israel does have a review mechanism for their targeted killing that has worked in his view over the years. i am not saying we could adopt to the exact methods they use as their situation is different but despite the difficult -- difficulties we could reduce the air and raise it to a legitimate target without losing the opportunity to attack a genuine terrorist. >> day do believe it needs to be more transparency with the process we use in order to have the improved targets. i will say if additional oversight does come on in your role that is decided upon and would encourage it

is an area of someone being an approved target but not in the area of the approval strike. in the second area, sometimes it is moments come midday's or years before the stars lined up we meets all criteria to identify with the right collateral, lowe's ability and casualty's with the right weapon and if that happens it has to be on the front and the to name someone outside of active limitations. >> will define if it is the leader. >> but then it is already painful enough to go up the chain of command after someone has already been approved and already on the list now you have to get additional approval to strike many times you lose the opportunity because too much time goes by and the target is fleeting. any of that oversight needs

to be on the front and outside of traditional combat areas. >> i think there would be in advantage as t. levin suggested have the review it is very concrete that could come out of this. when u.s. military kill civilians we make payments to the victim's family for buchanan and a mention of post facto review with castle to -- casualty's will allow you to make the same payment after all if it is war it doesn't matter where it takes place. if we as a country tend to compensate people when we can. >> i agree with that point*. in the last few years when they were used in yemen it has been stronger it is hard to think it could be made good but one of the things that has to be done very

fast is the accommodation for the civilians who were killed and where there drone strike has killed the civilians to build the hospital or the schools. >> vinc you for your indulgence mr. al-muslimi. >> do they know we're there was the approval of the government of yemen? >> it is hard to speak if people know or don't know but if the government has approved it is outside the big fancy walls of the castle. not an issue if the government approves it or not or sovereignty but on the ground it doesn't take the rocket scientist to

forget about it. >> before the edge drones was. >> host: he looked at as a positive force? >> i have not seen anyone that thinks aqad is a positive influence ever. >> we have a responsibility and we need to use that between the cia and military. aside from the intermural conversation we might have about two different agencies can you give me your opinion as to if this is a good thing or necessary or should be continued? >> i think colonel mcsally we'll jump in on this, but my experience whether drones or other types of weapons systems, when you ask the military to conduct operations that are

non-military, we generally have trouble because we train people to do military operations. if you ask them to patrol the border people will often get killed that should not have been shot. if we're going to have the military purchase a pate in these operations for an extended period of time more than that one-off mission that we need to go back souza practices of reconnaissance with specific troops trained in recruited -- recruited to do that type of operation. if that is what we do then that is what i would recommend. if you just want one airforce rather than two or three for logistics' reading -- reasons that it needs to be the air force that is capable to train a set of people for a specific set of mission that is not the same >> i have been to one of our

bases were the drones our launched and i have seen the intelligence gathered taking place. and when it is done, according to the book, that is what i was told, it is a very painstaking elaborate and lengthy evaluation to cite a person before the decision is made and despite the tragic circumstances where innocent people are killed killed, it has happened happened, every effort is made to avoid that to the extreme, as it should be. and the basic question is whether or not the intelligence capacity which is so important in the process is different or better between the cia and military. do you have an opinion? >> if it is now inside the area of hostility in the country we have not declared hostilities, then it is generally accepted that the

agency has better intelligence and better ability to gather intelligence than the military. that is under the current rules of food does what where. >> dr. bergen one of the things the new america foundation has been involved in is public opinion research about the impact of a drone strike some from pakistan the yemen. could you tell me what you found? >> we did the independent poll of the tribal area where that strikes happen and we found the overwhelming opposition to the drone strikes. if we ask the question if the pakistan military was involved would it change and the opposition goes down on a lot is a pakistan meet military was involved it is national sovereignty also with a credit and the taliban. we ask a question if they were on the ballot would you vote for them in the election? the majority would so it is

not my knowledge of good polling on this issue there is some public discontent but not as far as i can tell which is more of the sovereignty issue in the civilian casualty issue after all of their parliament voted to stop this with is confusing situation and theoretically they can shoot them down but don't so there is tacit consent. >> that is the point* that i want to go to with professor brooks what i find different is the definition of a battlefield. i knew what we were voting for in 2001 coming to afghanistan. we were headed there. that is where al qaeda was. we would answer that attack. but i don't think many members did we would have this conversation 12 years

later about yemen, somalia and pakistan. to me, maybe i should have been able to discern that, but i didn't. it appears now we have to have tacit, passive, active prove before we use these aircraft, unmanned aerial aircraft. before we engage the enemy. there are a lot of places we are not pursuing them so how does that work into the definition of battlefield with use of military force? >> not very comfortably frankly that was why it is such a deep problem because we have to legal paradigms' adult face the challenges we are faced with. to illustrate, you may remember senator 1976 orlando, the chalet and

defense minister ousted in a military coup imprisoned and tortured and came to the united states and was outspoken against the dictatorship. they decided that they did not like that socially and intelligence planted a car bomb in his car killing him and his american assistant. our government called that murder. my concern right now is because of the gap between these two legal paradigms' and the extreme secrecy and lack of transparency in which these take place, right now if we could imagine those circumstances occurred today i would assume the chilean military government would say to the united states what is your objection? he is an enemy and you were unable to do anything about it.

you harbored him and so we have to take matters into our own hands and we say we request your assessment and they would reply that is our decision to make and we don't have to tell you that basis. my broad concern is we have essentially handed the playbook for abuse to governments around the world. we need to develop some middle ground that acknowledges we're in a situation that is more like in many ways but crime like another's. we can do that it is just creativity. and just to go to the strategic issue when it comes to the strategic cost and benefits of this policy, unfortunately substance matters as much as reality of the way very much agree that the drones are not offsetting the legal issues but the blow back

israel and that is something unfortunately we have to consider just as much as the legal issues. >> just briefly the aumf does not contain a geographic limitation rather the limitation based on the nation organization persons said the plans authorized or committed in a tax so it is not limited to afghanistan or other nation but it allows the of president to locate these groups but there is an important distinction between nations where the government supports these groups or is unwilling or unable to do anything about them were there is the rule of law both legally and from a policy perspective different measures are proper and i second that there may be cases rated is legally or morally appropriate to use

lethal force but we may not want to do so out of policy considerations whether flowback other concerns. but the aumf does not have a geographic constraint. >> many of us look at that as hot pursuit rather than 12 your effort in places where al qaeda progeny would somehow appear. it was a little different time and place after 9/11. now we look back from a different perspective. senator? >> first-ever like to ask a question to general cartwright and colonel mcsally for counterterrorism purposes, what is the relative value of killing verses capturing s senior operational leader of al qaeda and how is that assessed?

>> again i have to sit in the hypothetical but there is a progression of terrorist organizations looked at in three stages one is recruiting with the iconic figure and in that phrase eliminating that eliminates the movement was the second stage it is considered a bench and another will come behind and the third is called franchising they have their own ability to generate. after you leave the first stage to separate political considerations, killing the leader has little value because she will be replaced. you may get a capable one that takes a while to recover but it is considered second and third stages

killing the leaders does not eliminate. >> i will speak to the challenges if you do choose capture over killed mission but it does depend on the circumstances and location if it is more desirable to kill or capture but maybe you want to capture more circumstances with the of location is there consent the unwilling or unable will you tipped them off and let's say that can be a complex operation and sometimes that intelligence can pop had a moment's notice it could be waiting for weeks or months and able to do other missions for the intelligence to come together than if you order them in they may have to

fight their way in or out so there could be extraordinary civilian casualties if things go wrong. then of course, the reality of the u.s. casualties or for them to be with the strategic implications of those are way did you consider to do capture mission sometimes the bar is too high and the risk is too high for the special capabilities. >> mr. bergen how has the obama id ministrations focused on targeted killing to gather intelligence and analyze situations in the middle east such as libya or egypt? >> it is a very hard question to answer but it was hard to predict the egyptian revolution even

those involved not know but the cia did seem to have miss the fact one-quarter of the seats were occupied by the second-largest party in egypt at the end of the day they should be in the business of strategic warning to policymakers. ultimately that is what it should be doing. if the assessment of you and your colleagues the cia mission is more paramilitary organization that is a problem. >> professor somin dc any tension that any u.s. citizens captured aiding al qaeda must be tried in the court instead of the military commission but nonetheless they could be killed with drones strikes? does that strike you as

inconsistent? >> i don't think it is inherently inconsistent that when we capturesomeone consider somebody as the enemy combat then they can be targeted wes there captured then they could choose as policy to try these and as opposed to doing so in military court although it is not unconstitutional or illegal to go to a military court that there is the inherent contradiction a musty ministrations says it not just as a matter of policy and article lomax three courts but also claiming it is never permissible to try such individuals in military courts which is not correct. >> wooded you agree on any analysis there is a greater potential violation of someone's rights to take

their life and it is to capture and interrogate? >> in many cases i think that is true but i don't think it is true categorically that there could be a person who is a legitimate target and therefore can be killed in the battlefield but if captured there are still legal limits, and acids used to interrogate so we should not engage in torture which is illegal under domestic and international law. >> let me ask the question there has been some considerable discussion about the potential role of the pfizer like court -- is the court -- fisa corporation with a drone strike and it strikes me that senator graham raised serious constitutional questions of the article ii of the appropriate ability of this

congress to restrict the decisions of the commander in chief to direct military operations against foreign house style forces i am interested in your assessments of those constitutional concerns and the boundaries of those. >> every betty or almost everybody agrees there is important powers as commander in chief at the same time congress has the authority to make rules for the government that includes a the president when he is acting in his role as commander in chief so congress can restrict the weapons used in the battlefield and therefore it is permissible for congress to require a certain amount of process before the operations are ordered and article one is congress that

authority to make the other regulations i suggested obviously since it has authority doesn't mean it should always exercise to the of all there -- less extent and to talk about how to strike the right balance of independent review and how that should be done. >> congress also has the power to define against a lot of nations which is a useful mechanism in this regard. but i would add who guards the guardians? clearly we agree if there were future presidents who were insane and asserted there was a war against a perfectly innocent group of people we would want an ned mechanism short of impeachment to restrain that abuse of power but i don't think the commander in chief

power and the fact the president has said great deal of discretion when it comes to armed conflicts needs to unnecessarily restrain congress from all over site you can design a court particularly with the after the fact review and with relativities devise a judicial process to not pose any of those problems and professor somin mentioned revere to lookit the israeli supreme court decision on targeted killing. a very similar system with the challenges they faced domestically. but they rejected the notion on the grounds the question

then if a particular body of law applies in the first place ned is precisely the decision said judiciary is qualified to make. >> alibi to thank the six of you for insightful testimony and in particular mr. al-muslimi for a considerable distance of time to give of marco and powerful testimony and the queue for conducting the hearing. >> i just want to follow-up on one issue with professor somin you know, that proposed developing and oversight modeled after the fisa court task with responsibility of reviewing the determination about the u.s. citizen becoming a terrorist leader. some naturally worry that such confidential courts

operate without any type of transparency or reviews so what they do would be completely immune from any oversight from the public or scrutiny and at the same time others would argue it necessarily makes sense to do that when you deal with whether or not a u.s. citizen is a terrorist leader. if congress would agree with the recommendation to a tree to the fisa court had to recommend it those of the delicate task to balance the degree of confidentiality and on the other hand, thin need for the public to understand what is happening on some level and is there a

way to separate those out? >> it is a very important question and we cannot find the ideal balance but there are situations already in the system and national security information may impinge on somebody's privacy is not publicized but at the same time the legal reasoning can be publicized for review by a higher court and consideration by the public and outside experts. it seems well the intelligence data that could be held confidential it is also the general standards for approving or rejecting such men issues that could be made public we have issues with the tea to court with other national security

information that i no to my testimony the experience of israel in this regard so we have models we could use to reduce the tension even if we cannot totally eliminate. >> which means possibly bifurcating the proceedings of the determination public from any kind of transparency? >> yes. that is correct we cannot have a perfect transparency but it would be more transparency in the current situation with these decisions are made almost entirely in the executive branch so that should not be the enemy of the good. >> they accuse senator crews and sousa panel for your patience and also mr. al-muslimi for your personal sacrifice to come here.

your testimony was extremely important and thank you for coming here today. mr. bergen, colonel mcsally mcsally, professor somin somin, professor brooks, general cartwright. this was a long anticipated hearing and the first of its kind in the senate and i am sure not the last but more will be discussed. groups have submitted testimony to be added to the record without objection including amnesty international, a constitution project, a human rights first, open society foundation without objection i will have their statements for the record then a point* of personal privilege to with knowledge a person in the audience sitting in the second row, currently a deputy public defender in los angeles but she returned for this hearing because the last two years she has been on detail to my office and served as counsel on the subcommittee in before she

left she helped prepare today's hearing. i hope we did well based on your standards and what you asked us to consider. she has made important contributions to our work included improving coordination with federal/state local law-enforcement to apprehend international fugitives planning the first-ever congressional hearings on solitary confinement and the school to present pipeline. thank you so much for your fine work. the hearing will be held open for one week to except additional statements and questions may be submitted i ask that they be submitted by close of business one week from today and to respond in a prompt fashion if there are no further responses rethink the witnesses for attending in my colleagues for their participation. the hearing stands adjourned. [inaudible conversations]

all i am doing is talking. i didn't do anything. [inaudible conversations]

>> the witness of national intelligence council study the driving in the dark and a bunch of others may have several data points that telesco uncertainty is the norm of the strategic environment the potential for conflict is increasing have the types upheld are the types that cannot be resolved with their power. the global study has the potential for multiple forms of war comes at a time of rising uncertainty adding to the willingness or ability to be the guarantor of security at a time of increased ambiguity as to the stability of the

international system. with times of such uncertainty and ambiguity with decreased likelihood of conflict we need to tell ourselves the truce not to hold onto our fiction strategic leaders need more options, not wes and the offices associated with that is better in the ncis study or the warfare among people requires more ground force capacity not less. of course, we prefer to a clearly defined state based threat that they must teacher and the feet unfortunately this is not the reality that we face. we do have some potential threats like this and have the military forces to deal with it that these have

become, unlike the past of lesser contingency but we need to do with the areas of increasing risk of the typical mission sent and other similar to them. but doing so doesn't fit the story because these adjustments require more not less but unfortunately reality is forcing itself with coble responsibilities and interests and surely the johnson administration did not want to get bogged down in vietnam and bush did not want to invade panama and clinton did not want to do panama and bush did not wish to fight terrorist and nation-building and some

pitcher administration may find themselves having to do just what it does not want to do. and when they find themselves in this position and turned to the military for options they will not be on their side the forces provided in previous administrations with options but now accounts much less so the ncis study we talk about today is very clear some varieties of confrontations and conflicts that same part of the collective strategic future cannot be resolved by destruction alone or by remote military action or by special forces operations. the real threat in my view view, is that the ability to deny a what we need instead of what we prefer.

>> but said the hitter is a place where a class or a group can come together to study the decisions that george made on the surge on iraq, hurricane katrina come and get the impression he was given at the time then being prodded by the press. what you going to do? it does reinforce the decision but it shows what he was faced with. the information he had at the time and it puts people in his shoes. and also gives people an idea what it is like to have the world serious decisions.

and every big problem does come. but could not say whether not their premiums would go up in 2014. this is just over two hours. >> to examine the d.h. as management of the affordable care act approaching

january 1, 2014 deadline. mr. gary cohen deputy administrator and from that insurance oversight or cciio is here to testify on behalf of d.h. as. cciio was responsible for implementing the insurance market and he knows they have their work cut out for them at the beginning of the next year full implementation will find they take place and on that day americans have been promised ability to purchase health insurance to the new exchanges the american people have been promised good coverage is affordable we remember the promises made and to rush to pass the bill of any means necessary if you like your coverage you can keep day and we have seen impending doctor shortages and of companies continue to provide coverage but the decision which is related to another promise that will be broken and that the law will over cost and a

school district in my district has said they will see premiums go up by $1 million derek is another promise we hear that the health insurance exchange will be ready for a moment on october 1 for implementation in january 1. some some 18 states have elected to establish their own exchanges cciio will cover 26 additional states along with a partnership along with seven other states hope they can hear about the progress being made to build those exchanges. recent news reports have indicated even obama is budget has confirmed in restoration is seeking additional funding to operate the exchange's. this is troubling considering a substantial amount of funding has already been expended to go to the exchanges and they have yet to even begin. i expect the witnesses to provide a full accounting of

where cciio stands in those exchanges run in the partnership and where cciio is obtaining funding and will they ask for more. since passage this committee has questions about funding to implement the law we have heard many stories about the health care law prevention health care fund in most notably it is utilized to higher health care navigators to assist the public to sign up for obamacare considering we have also heard funding from the prevention fund is under a different project we are concerned it is rated as a slush fund to throw money at and hide any problems i hope mr. cohen can address the over utilization that is so common "the washington post" has dubbed it the incredible shrinking prevention fund. amid concerns of how they will be trained and supervised and cciio is with

consumer groups for those who have any compensation they are for debited from becoming navigators'. we recognize the need to have an impartial navigators' but the insurance market indicates those who have been selling insurance for many years may have some expertise or valium and we have questions about what questions so that those who have their membership rule run dry some experience and training is not qualified than someone without experience can be hired. this just scratches the surface for responsibilities of cciio and hope we can discuss the ability to determine whether health insurance premium increases are legitimate as they have already warned of rate shock. obamacare has consistently promised lower cost now we

have tax credits and showing only 8 percent of the public will qualify. we invited the other 92 percent can expect and i will recognize your opening statement. >> thank you very much things to the affordable care act tens of millions of americans will receive insurance for the first time americans will enjoy protections for the worst abuses with average lifetime limits that cut off coverage when it is needed the most the zero big changes in the time to implement them is coming up very fast in just over five months citizens can sign up for health insurance through the federal or state marketplace.

while signing up for coverage should be easy implementation will be a complicated process over the next few months it is a new approach to have coverage nationwide and they're always difficult to implement and by the way the cbo has predicted that overall consumer cost will go down once the marketplace is implemented there is no reason to think it won't work it worked great in massachusetts under ms. romney but we have to educate millions of people about the marketplace in advance. cciio has complex data systems to manage the process i am glad you're doing the oversight and we need to hear from mr. cohen how cciio is doing and what it takes to address those challenges but we should

conduct this oversight with a proper perspective and i wish when then naysayers' raise the specter of the increase of premiums for some young healthy people like agon man they can also put this into perspective by understanding said tax credits on average packet -- out of pocket cost will lower overall cost for these individuals in millions of other americans and i wish folks raisings day high a specter of premiums for young man could add to that perspective the millions of women of all ages who will pay lower premiums and will not be discriminated against simply because they are female or the millions of americans who will not received dramatically better and more dependable insurance coverage. when people complain about the fact the obama administration is heaven forbid spending money to make sure citizens understand the new law, i wish there would take the perspective to remember the

bush administration did the same thing even hiring plans to spread the word about medicare and spending $300 million on a public-relations campaign for medicare part c. mr. chairman, i voted against the medicare part the bill because it did not allow negotiation to lower the drug costs but even though i voted against it i had town hall meetings all throughout my district and internet trading to help my constituents figure out to sign up for it. and i think we need to have that bipartisan cooperation as we implement these exchanges at the national and state level. i hope we take that appropriate perspective and we can develop that as the affordable care act is implemented over the coming months.

january 2006 implementing the medicare part c program "time" magazine described the initial nightmare of the implementation noting the of what resulted in low income seniors being turned away by the compound a new prescription drug program. in vermont it was described as "public health emergency''. those problems are almost forgotten it ultimately party got off the ground and even though initially voting against the problem the doughnut hole was eliminated by the affordable care act. so as usual there is a lesson to be learned i hope the implementation of the affordable care act goes smoothly i hope more smoothly than the implementation of medicare part d but i am not naive

enough to think it will be completely wrinkle free. but i do hope that as problems arise we can work together to identify and fix them this of abusing them to score political points because we all have a stake to provide health insurance coverage for all americans i hope our hearing in work represents the effort by everybody to trim the work together. i thank you for having the hearing and i yield back. >> i now recognize the committee for five minutes. >> looking at the rigorous oversight of the obama administration implementation of the health care law we have had cciio before the subcommittee three times during previous hearings we uncovered promises made of the affordable care act did not match up with reality. 2011 we learned cciio was granting waivers to individuals would face large

premium increases for loss of coverage because of obamacare. we also found through the implementation of the early retirees' insurance plan cciio had handed out millions of dollars to certain corporations and even more troubling was the fact the early retirees plant burned through the $5 billion allocated so quickly that it stopped accepting applications may 2011 more than two years before the program was supposed to end. is the same amount of money given to the insurance plan. this bill has been a lot of the land for three years and we're just a month away from the full implementation and by all accounts they do have their act together. it does not bode well for the top supporter of the lot ward the hhs secretary sees a train wreck coming will the exchanges be ready?

how can families be prepared? can they rely on the promises it feel like coverage you can keep it could they afford higher cost? the alarm bells over how obamacare will unfold there getting louder by the minute. insurers are renamed -- warning about premium increases and they're struggling whether they can provide employees of coverage. patients need certainty and employers need certainty. i hope hhs and cciio will show us what they're doing to implement the law by the deadline. finally this committee marked up the bill that targeted the prevention of public health to give the money to those who need it most. americans with pre-existing conditions who were promised coverage by supporters of obamacare only to find the program was closed a few weeks ago. pre-existing condition insurance plan is the example that promises don't

match reality and we look forward to the vote this afternoon to fix it and i yield back the best of my time. >> mr. cohen thank you for coming back to our humble subcommittee. of course, my interest in vinc cciio predates cciio right after the affordable care act passed and we were in the minority but he was good enough to come to my office to do talk to me. mr. larsen has been in and you have been in at least one time but it has been very difficult to get information out of the teeeighteen the basic information they say we should be at a posture of working together but it is difficult to do that. one of the basic questions remain unanswered. we have october 1st coming fast, five months away it

seems like there are more and more questions of the readiness of your office and the of ministration to get the answers that people want you yourself went to the american health insurance plan conference this month" end quote. mack it is only prudent to not assume everything will work perfectly on day one. i agree with that but i think we as this committee need to hear from you and where are the concerns and where are the lights blinking on the dashboard and what you doing to prepare yourself and your agency for that day when everyone goes on line that may or may not exist to sign a for these programs. senator rockefeller said it pretty well the other day. people are going to get a bad impression and it will stay with them. the references to part d are

reasonable but remember that day happened after two years of preparation and you have had three years and six weeks of turmoil with part d could turn into many weeks or months or years when this program is unfolded next year. so the application am process is lengthy and complex than people have to estimate whether or not they think their employer will provide insurance, with their earnings will be, these are tough questions that need answers and we hope we get them today and certainly will be adding additional questions in writing in the period allowed. thank you for being here today and with it for rich your questions. >> your time is expired and now i recognize senator waxman. >> the republicans on this committee and the health

subcommittee have held five hearings since december on the affordable care act. each of these five hearings repeats the theme they oppose the bill. the survey never expected this to become law. republican members cannot except that the health reform is working and it is though lot of the land and until the day the president signs the bill they insisted it had no chance of passing. until the supreme court ruled that constitutional they said it is not constitutional. and then they would go in and out of office to overturn the of law but none of that happened. now they call this the oversight hearing because they predict the terrible things could have been there

not predicting. they are wishing bad things to happen. this is not hearing to be constructive but to attack the law and hope that it doesn't work willfully go into effect and americans will not have to worry about the ability to get affordable high-quality health insurance. some republicans are saying the implementation will not go smoothly. implementation of any new program has its kinks but for the affordable care act is proceeding on schedule and heston and good for people over 3 million young adults now have health insurance over 100 million have received free preventive health benefits more than 6 million seniors have save six point*

$1 million from the medicare part b program and beginning next year tens of millions of americans to what otherwise be without health coverage will have dependable quality health insurance in the republican colleagues said the certainty they would have with the affordable care act is millions of people are discriminated against because they offer a risk to the insurance company to pay more money for their care. they have the certainty a knowing to do everything they could to get coverage that it would cost insurance companies money. that is what we wanted to change. for those who oppose the affordable care act what can we do to make this law or

move more smoothly? can we blame people who supported this lot about the problems as they come up? i believe we have at this hearing today mr. cohen who is here in december answering many of the same questions that will be asked today. cciio has made huge progress to implement the affordable care act the does not change the mind of the colleagues on the republican side this makes them more determined to look for something they can criticize able'' on and the bill because under the affordable care act we have a high risk pool of pre-existing conditions so

waiting until january to buy health insurance. without being discriminated against because of those pre-existing conditions. we have spent $5 million on the program to help people with pre-existing conditions to be in the high risk pool and we ran out of money. they supported the idea of sequestration happening and we are running at of money with all sorts of places where the government has an obligation that we have run out of money for the preexisting pool, and medical problems pool, and tow the last few months of this year. so the republicans are suddenly concerned that the

fund has enough money to go on for the rest of this year but they find it by taking away the public health prevention fund through 2016. it makes no sense whatsoever to support the continuation of the preexisting pool to the end of this year certainly we could have found a better funding source if they were denied the opportunity of any other source offered on the house floor today. you have to question how sincere they are about wanting to help people a pre-existing conditions, how sincere they are to see a smooth implementation of the bill. they want this bill to fail and go back to the time when millions of people have no chance for insurance. that is a certainty they want to offer that led us to have the affordable care act

passed into law. i a encourage mr. cohen and his agency for what they're doing that is what we should want to see happen now that it is the of lot after they lost the last election in the last chance to repeal. >> chairman neil cpac. you are aware they are holding the investigative hearing and have the testimony under oath you have any objections? >> no sir. the chair advises under the rules of the house and the committee you are entitled to be advised by counsel so please rise you please -- where the testimony about to give is the truth, the vultures, nothing but the truth? thank you. you are now under oath and subject to the penalties of

the united states cut and now give a five minute summary of your written statement. good morning chairman murphy and ranking members i appreciate the opportunity to tell you about cciio accomplishments over the last year a lot has happened since the implementation of the affordable care act i will describe the progress made and how i know we're on track for open enrollment this october. we have achieved a major milestone earlier this month opening the window to submit plans for the facilitated marketplace and we said that would happen on april 1, it did on schedule. have an encouraging response to expect to see robust competition for the business of millions of americans shopping for health insurance state's operating their own market place accepting submissions from issuers as well it is important to understand to

improve the process since the window opened a got feedback from states and issuers and addressed whatever issues have come up. a health task has e-mail with questions on how to submit information and hold regular pro calls and published answers to frequently asked questions there over 200 dancers in connection with the process that have been provided. i am extremely proud of the work the team is doing to make sure we will have product on the shelves by october 1st. another key element to find certain affirmation and with those offered in the marketplace and this is in realtime to be checked against information available regarding income, a citizenship citizenship, incarceration and so forth. it is a conduit for those

that are kept by the irs, social security and a rigid homeland security this enables real-time electronic verification to determine eligibility and it also has access to the data and we've begun testing the connection and have succeeded to transfer data back and forth it is another major milestones achieved on schedule. the hub will be fully operational for open enrollment this fall. and other key element is the single streamlined application that consumers will use to find out if they are eligible for medicaid or chip or tax credits. we have gone through an extensive consumer testing process since the draft of the application was published and we continue to make it as simple as possible.

so to answer questions and alleviate concerns to direct consumers were they can get additional help. so to complete less than one-third of total numbers and to make the process we know buying health insurance is not like buying a book on an amazon. many people come to the marketplace will have never had commercial health insurance before and will need help to choose the plan that is right for them with their families we have put in place a variety of ways for people to get that help. at health care .gov people can understand what the cost with a checklist and how to shop for coverage there are several short videos explaining how shopping for qualified health plans will work. health care .gov will have a

chat capabilities of people can get questions answered quickly. and it will be answering questions 24 hours a day seven days of weak. so the facilitated marketplace navigators will provide fair and accurate and impartial information to help consumers use the marketplace with a health plan meanwhile licensed agents and brokers compensated under state law may enroll through the marketplace in every state. we have been part ever to improve the insurance market for all americans. these achievements a confident and excited for the future market and soon consumers could have better access and i'll be happy to answer your questions. >> unrecognized missile for

five minutes. regarding that navigators' i believe the law says if they receive compensation they are not eligible to be employed as a navigator. is that correct? >> if they received compensation with enrolling people they are not eligible. >> of mary smith is in the field 20 years she has a license to receive insurance to have 24 credit hours she passes the test and continues to take 24 credit hours every two years to maintain her license. she has sold of wide-ranging of insurance for-profit and nonprofit to thousands of individuals and would like to apply for the job as a navigator. also john doe who is applying for a job with a high-school degree with zero experience who is eligible to be hired? >> it is important to understand there is a

difference between one and navigator does and the insurance agent does. >> by a understand very smith does not qualify? >> she is discriminative from being a navigator because she has experience in the field? in may she is welcome to help clients obtain coverage >> does someone who was done this for a living is prohibited from being hired to advise people to buy insurance under court to advised? >> she can choose no longer to sell insurance and be a navigator. >> so as long as she is no longer taking money from insurance companies she is eligible? so and terms of the time frame a lot of employers say i have to make decisions now and to make decisions now house soon will they know

what is in the exchange's? you have the date? >> yes. the plans are being submitted now and will be reviewed by the state insurance regulators and insurers have the opportunity. >> you have a date? >> september. they will have complete final training in august so that seems odd they cannot get training before they see the exchanges so i hope you just that they. >> their primary function of the navigator's is not reach and enrollment then when enrollment starts in october. >> so these will be available in september but they start in october 1 month later? >> you feel yes. >> you feel they will be fully trained and informed? >> yes. >> also with regard to navigators' i have heard

people out who are involved with community groups or political groups can apply for jobs as navigators? >> the requirement for applying for the grant. >> i am just talking involvement of other activities. >> we're hoping groups that have demonstrated a history of serving their community and the people in their community we're trying to reach will apply. >> acorn members? >> i cannot speak to that. >> they would not be prohibited? >> they can apply and we would review their application. >> i am concerned about data confidentiality and hipaa so what assurances you have been blaser penalties to make sure they do not keep the data if it is a man a government computer system and cannot use it for any other purpose.

>> navigators' will be trained on the importance of privacy and security and subject to all laws and regulations that protect. >> other other criminal penalties? >> there are. >> are they allowed to except donations from insurance companies or other private groups? >> the prohibition is against receiving compensation for enrolling people in coverage. >> understand. but donations are they permitted? >> i think the with need to understand better what type of donation. >> could you look into that and get back to us. i and a stand that concerned. final question comedy thank you have enough funding at this point* to take care of your enrollment of people in these exchanges? >> this the year 2013 we have enough funding and we

have the president's budget to request additional funding fiscal year 2014. >> my time is expired. >> mr. cohen the chairman talking about the hypothetical person mary smith to is the registered insurance broker you cannot be a navigator while she sells insurance because that is a conflict of interest? >> correct. >> but with all the qualifications decided not to represent any insurance company she could become a navigator? than she does not have a conflict of interest. >> right. >> and now the community groups. as i recall when we did medicare part d we had a number of community groups hoping to sign seniors up for that. is that right? >> correct. >> is a similar situation it involves asking senior citizens to sort out a

number of plans then apply online. >> that is true. >> so you did have to have trained individuals whether from canyon the groups are other places do this? >> you did. i am glad you have a lot of confidence that on october 1st 2013 consumers can sign that for these exchanges but i want to ask about the state including colorado that will either run their own market place or partnership with the federal government. what is your view? how are they coming along? >> i am prague improved -- impressed with the congress -- progress with those people at the exchanges and at the state medicaid agencies because that is an important part as well it is fair to say some state

started earlier in the process some started later so we look carefully at the progress each of the states are making and our commitment is there is a functioning market place in every state on october 1 so we work with the states to major we make that happen in. >> what about the states that got a late start? to they have more of an effort? >> correct. can you give us a sense we have talked a lot about doing the oversight what are the milestones are benchmarks to measure cciio progress? >> we provided with the timeline for what is supposed to be happening over the next several months but the key is we're on schedule and on track with the i t-bill and we achieved

as a big milestone this month with the federal death of interesting now said is important to take a look cady said the steps to make sure we are on track but i am confident of where we are at this point*. >> a couple months ago you got a question at a conference it is only prudent to assume that everything will work perfectly on day one to make sure we have plans in place to address things that may have been. " end quote. and also as we get closer we'll be in a position to better know what contingency plans we have to implement that seems in contrast to what you say this morning can you explain what that comment mint and if that means hhs will not be ready

to implement the of lot? >> some times when things are reported the context is lost. >> i have never notice that. [laughter] >> not if we're ready for operation by really to the comments you made that we know when big programs begin you have to make improvements and it is only prudent to be prepared for the things that might have been that you could do better and i call federal agencies subject do guidelines published by the national institute of standards and technology when you do the project to be prepared with mitigation strategies that we will be up an operation. >> can you tell us how you develop those mitigation strategies? >> yes. if it is a process, as you

do the bill and i am not the expert on t2 but with testing you see how things are going and come up with a strategy for example, if we get more applications that come in on a number one than we planned you have to have redundancies and me prepared for that eventuality. those of the types of things that we're doing. >> i now recognize the gentleman from texas. >> mr. cohen go back about what contingency plans you have to talk about and the secretary said there was none and everything will be ready. which is it? everything is ready or planning for contingencies? >> everything will be ready but we're also planning for anything when we go into operation if situations come up that we need to

address, we will be ready to make sure the experience for american consumers is as seamless as it can be. >> that committee would benefit from seeing those contingencies. would it be fair to say that closing the enrollment on the pre-existing insurance plan was a contingency? >> closing enrollment is something we did because it was the prudent thing to do that we had a certain amount of money. >> was that the contingency plan that we were unaware of last year? >> i think we were looking carefully at the expenditures and committed as careful steward of money that was appropriated to do whatever was needed. >> here is the point* the secretary says there are no contingency plans in europe are tiny one year ago there was a plan to deal with pre-existing conditions.

>> did not say that. >> is sounded like that if we take it out of context, which we will, that now will be reported by your friends in the press. we have to level with each other. people are counting on you to do your job on january 1st. and you phrase questions your main health it at the conference for use pokey raise questions whether the central hub will be ready then you look at the pre-existing condition plan and a word that goes around i burned new words of the time some that i can say here but the word that keeps coming up this is de-scoping reducing the scope of the affordable care act when data rollout ochers? reminder, you are under oath when we caught you in your back next year there is no plan to narrow the scope of

the affordable care act? . . >> that's a problem. what about the shop exchanges that were much extolled as a virtue of the affordable care act and now those are going to be delayed. not delay but you owe have won,

the competition that was advertised amongst these. i think that is what senator rockefeller was talking about. wait minute, this is -- >> let's be clear that employers will have choice. they can choose among the plans that are available in the shop. and we believe employers will have more choice under the affordable care act than they did before. the one year transition affects only employees choice and whether employers can offer more than one plan to their employee. >> i would just offer the observation that sounds like a narrowing in scope to at least to me. maybe it doesn't to other people but it does to me. so let me ask a question about taking the money from the prevention fund. did someone in your department make the decision to take the money to fund these navigators speak was within cciio, nope. >> who made the decision? >> the secretary. >> so can you perhaps talk about

how your department has been using the money that the secretary moved from the prevention fund? >> the proportion of the prevention fund money that cciio is using goes to the $54 million funding opportunity for the navigator brand. >> so are you going to take other money from the prevention fund? >> i'm not aware of that at this point. >> but it's the secretary who has the transfer of authority under the law. so unless she were to level with us and i promise you she didn't last week, and lets you were to level with us about what the future plans or we would have, he would have no way of knowing, we would have no way of knowing. that secret is locked up with the secretary. >> the gentleman's time has expired. that recognize mr. waxman for five minutes. >> thank you, mr. chairman. it's so amazing to me the republicans are complaining that money was taken from the prevention broke into a play for the implementation of the affordable care act after the republicans denied the administration funds to

implement the affordable care act. it's like the kid who killed his mother and father and said, well, you have to care for me because i'm an orphan. they are the ones who are in beating this legislation from being implemented. and forcing the administration to make these kind of choices. but they are now making a conscious choice to take the prevention public health fund to pay for a short period of time for this pre-existing condition, insurance program that is supposed to go out of existence at the end of this year. this preexisting condition insurance pro crown, or peace up, was part of the affordable care act. it isn't something republicans offered into law. as part of the affordable care act that they voted against it in february of this year, cciio, your agency, announced enrollment would be suspended to

ensure that the programs funds, which were capped, would be able to pay the claims of existing enrollees. this is what happens when you cap the program. they want to count medicare. they want to cap medicaid. that means if you run out of money you have run out of services. now, was this decision made because, why was the decision made? >> you stated it, congressman. we have a certain amount of money that was authorized for the program. our number one priority was to make sure that those people who are already enrolled in the program got caught nude is care to the end of year. >> were talking talking about 100,000 enrollees and isn't that correct? >> it's at least that many, yes. >> these individuals would be able to receive their benefits throughout, to the end of this year? >> correct. >> am i correct that the pcip program was meant to be a temporary bridge to full

implementation in 2014 when insurers would be discriminate against people with pre-existing condition? >> that's right. >> well those uninsured individuals who cannot get access to the pcip program now be able to get access to affordable, quality health care coverage when the aca goes fully in effect ingenuous? >> that's right. ensures will not able to turn them away or charged more. >> that's quite amazing that republican suddenly want to chant a program for a few months, which is a bridge until people get to what is a much more sane way to handle the matter. people and the pre-existing program, to the end of the year. we'll put all their expenses, do we? they have to buy their own insurance. >> that's right. >> will that be the same price as other people's insurance? >> under the pcip program it is

about the price of other peoples insurance today. unlike state high-risk pools for the cost to enrollees is typically much higher. >> we talked about the affordable care act being fully implemented in 2014, but many key benefits and protections in law are already in place. i want to ask you how americans already benefiting from the law. the aca prohibits insurers from denying coverage to children with preexisting conditions right now, isn't that correct? >> that's right. >> how many children are the with pre-existing health conditions? >> as many as 17 million. >> 17 million people. we didn't have to create a fund for them. we just said they will have to be covered right now, the others will be covered in january? >> that's right. >> covered without being discriminated against. the also -- the law also bans lifetime coverage limits, isn't that correct? >> it is. >> how many americans are benefiting from this provision

of the affordable care act? >> approximately 105 million. >> the aca also in some of the insurance industries most horrible abuses including policy decisions. mr. gorn, for folks are not expert in ancient industry, tell us what are these decision? >> so insurance, before the affordable care act ensures often had a pulse of what's called post claimed underwriting. so they would wait to see if someone got sick and start having a lot of health claims tended to go back to look at their application and see if they could find something in the application that maybe was mistakenly entered that was incorrect and then they would say, we're going to take away your policy retroactively so that we don't have to pay for any of those claims. >> so when republicans voted against the affordable care act, they were voting to let the insurance companies do this recession, just taking what your insurance coverage when you need it, even though you paid for? >> that's correct. >> thank you. >> the gentleman's time has expired. i now recognize mr. scalise for

five minutes. >> thank you, mr. chairman. appreciate you having this hearing. thank you, mr. cohen, for coming. yesterday i was in my district before i flew back here to d.c. and there was a panel on the health care law that was held at a local hospital in my district. and i was one of the people that was speaking on the panel and there were a number of people in the health care industry, people that have insurance. it just seemed to be an underlying theme that continue to go through that room that nobody is ready for this law, nobody knows how it's going to work for them come and most people really concerned that the good health care they have, they are in jeopardy of losing. again this is something i hear all the time when a back to my district talking to small businesses, talking to families who have health care that are having real concerned about whether not they can keep that. are you out of touch with this? do you do these concerns? i've talked to my colleagues from other states endangering the same thing. are you hearing these think? >> i think it's important to

keep in mind that for the many millions of americans who have health care through their employer who have been employed more than 50 people, they are largely unaffected by the affordable care act. >> an example i met with the owner of whole foods. they have like 30,000 employees. is a very large company, very well respected company national. they have health benefits their employees like. they get to vote on the benefits. it's a very highly successful plan. they have managed to control cost. they beat the industry average and yet they still provide a plan that their employees like. under the current law from what they see the plan is not even eligible. they are 30,000 plus employees that have good health care they like, our right now at risk of losing that coverage. the old promise if you like what you have you can keep it? it was broken to those 30,000. that was one example. are you even aware of that? >> i can't speak specifically -- >> you ought to find out about a real-life example of a real company that is a well-respected

company that has good health care. their employees really like and they're right now at risk of losing it. because of this law. i want to walk through some specific things that we've been seeing and start with a pre-existing condition insurance program. y'all did, y'all did actually stop, stop taking new enrollees in the program, right, because it ran out of money? >> we stop taking new enrollees to make sure we would run out of money. >> the early retiree pre-insurance program that was supposed to last until 2014. i think it was discontinued in 2011, is that right? >> i think the success of the program shows a great need -- >> so it was close because it was so successful summon can get in? >> we are paying out claims not only based on money that is coming back to us. us. >> can someone enroll in it today? >> no. >> some requirements of the small business health option program were delayed, is that correct? >> the shop will be operating in

october. the one provision that is -- >> did you delay some of those provisions? >> one aspect of the shop which is the employee choice. >> the class program, that was supposed to be obama cares long-term program, that was repealed by congress was in its? >> that's not one of mind. >> that's not what anybody's anymore because he got repealed it was so bad. hopefully none of this is yours anymore because we can repeal the whole thing. but one more, the 1099 requirement. we are hearing horror stories about that was getting ready to take effect again part of obamacare. the horror stories were so bad that congress, republican democrat alike repealed that. >> that's my understanding. >> it's not your problem because we repealed of that. so there's five examples, fairly small components but then you are here telling us that probably the largest component that you're going to have to do with, and that's these exchanges, they are going to be ready. they will be fine in a couple of

months when it's time for them to come online. i just 85 exams of programs that were either delayed, close enrollment because they weren't ready for prime time, or just a repealed because they were so bent. you will tell us the biggest part is going to be okay? >> we are on track and i can just point to the successes we've had so far in developing -- >> i just highlighted five examples of failures. in fact, i don't know if you notice one of the lead architects of obamacare, senator baucus last week said quote i just see a huge train wreck coming down. he's not even running for reelection but he just said that last week. do you dispute what he said last week about the health care law being a huge train wreck coming down in? >> we are on track and on schedule -- >> the problem is there is a train coming at you on that track according to one of the architects. that's not me. that was someone who is helping push this thing through said it's about to be huge train wreck. >> we'll be ready to help millions of americans enrolled. >> i hope you are ready to help

these americans with this train wreck but when you talk to real people in the real world big and small compared about how they can keep health care they like. that's a big concern of mine. yield back. >> the gentleman's time has expired. >> thank you, mr. chairman. mr. khan, thank you for appearing before the subcommittee today. the affordable care act's prevention and public health fund have been subject to ongoing attacks since the inception under the affordable care act. the republicans have thought to repeal or -- they argued it's a slush fund and the resource are being used in a properly to pay for public health lobbying efforts. let's take the opportunity to set the record straight on exactly how the prevention fund is or isn't being used. i know the prevention fund -- can you give us a general

overview of the hhs agency and public health programs and activities that have been and will be supported through the fund's? >> so i would be happy to try. that is not directly my area and i would be happy to get back to you with information on that, but i do know that the fund has been used extensively in tobacco cessation, and bonus programs, and in other programs designed to get the benefit of care to people. and with respect to the work that we're doing, we know that when people have health insurance, they get preventive care and they get care to illnesses that they do have earlier and they get better treatment and it's more cost-effective. so i think that the use of the fund to help stand up to exchanges to make people, make sure people know about them and take advantages of the benefits they have to offer is really right within the scope of what the fund is intended to do. >> thank you.

do state and local governments receive any of the dollar's? >> you know, i don't know the answer to that, i'm sorry. >> is there a way you could check? >> absolutely, be happy to. >> is any of the prevention fund being used by its grantees to support local lobbying efforts of? >> no, not that i'm aware of but again i can check into that and get back to you. >> what is the department's post on use of federal grant dollars for lobbying? >> it's not permitted. >> with respect to using this fund to the government the affordable care act and intimate to help insurance market places, i understand that you and the rest of the administration are in a very difficult position. because republicans in congress have refused to provide any funding to support this critical program and help the implementation works with the hhs was forced to leverage and reallocate existing resources to provide short-term and immediate funding. so my question is, can you

please explain how the secretary has used her transfer authority to help implement the affordable care act? >> the secretary has used the statutory authority that she has to transfer funds within hhs. she used some funding from the fund as you mentioned and she has used some funding from nonrecurring fund for, particularly for i.t. projects. and those are the sources that she is used in addition to the application fund that was contained in the affordable care act. >> the i.t. projects that you're talking about, would've -- >> that's the work we're doing to get the marketplace is ready for october. >> for october 1. and how well they just ensure that programs supported by the prevention fund won't be negatively impacted due to the reallocation, if you will, of the fund's? >> l. i mean the president's budget for 2014 request

additional funding for the work that w we're doing. so the hope is that going forward we will get that funny and we will be able to rely on that rather than having to use any funding out of the prevention fund. >> i thank you for your response. the prevention fund is a significant, smart and worthwhile objective. obviously, in improving health situations for customers and reducing costs. it's unfortunate that you have to reallocate some of these funds to pay for implementation. i think it's unfortunate that my republican colleagues have been so unwilling to provide the basic funding requested by this administration to government health care law. i appreciate the insight that you provide today. if you can get back to us with some of those other concerns, that would be appreciated. but this down payment is the effort to provide for a better outcome and to achieve the

ultimate goal for the affordable care act. so with all that, i thank you. and with that, mr. chair, i will yield back. >> thank you. the gentleman yield back. now recognize mr. harper for five minutes. >> thank you, mr. chairman. mr. cowen, thank you for allowing us this opportunity of very important issues that we need to discuss and want to follow up a little bit on what the gentleman from louisiana just asked you about a preexisting condition insurance program, the fund where we stopped enrollment we had to stop enrollment. i was under the impression that it was stopped because money was exhausted. but you said you stop so you would run out of money. would you explain it in a little more detailed? >> sure. as with any program like this, claims come in and have to get paid out over a period of time. so we have to project forward for the people that we have enrolled in a program now, we need to make sure that we can

cover their costs. >> your anticipated projected or -- >> for the rest of the year. so we look at how much we spend and how much we have, and, obviously, we know that we can't go beyond what's been appropriated. so that was the basis for the decision. >> how much money was left when it was closed, when enrollment was stopped? >> you know, i would have to go back and get you those precise numbers. >> can you provide that? >> i would be happy to. i don't want to do state so preferred to go back and get you that information. >> resisting, i think everybody here, you are always concerned about pre-existing. but before, even before the implication of this, the largest insurer in my home state already provided pre-existing coverage for dependent children up to age 25, not quite 26 about 25. and those things were there and available. but what i want to know is you said it was not enough money left so you had to start. but isn't this money that we're talking about today, had --

could not some of that been used for navigators or something else? did she have the authority to transfer some of that money that was available to her, billions of dollars available to her, to help prop this program up for pre-existing? >> that's not something that we looked at, congress then come but i'm sure -- >> i don't know that i need you to provide an adjective we know that's the truth but she has the ability. the money is almost like a slush fund for her to use. and so we're going to do what should've been done which is to take this money that is there available to you to help these people that are sick and to help those with pre-existing. i mean, how can we say that some of this money has been used for pet neutering project, and some others were used for lobbying efforts regarding soda taxes. i mean, that's unconscionable

that we would use money for something like that, but yet deny they care to those that are in the most need. so i would encourage you to even now as this is going on, there are funds available for the program that could be shifted over to pre-existing but we'll take care of it with legislation today that it's interesting, even though someone at the site have been very critical. there are many health advocacy groups, patient advocacy groups that support this bill that will come up for a vote later today. i would like to talk now for a minute about the sequestered impact if we could. you know, we've had this administration canceled white house tours, but yet have concerts that cost over $400,000 of taxpayer money. we've had an easter egg roll. we're going up against another congressional white house christmas ball. all these things are done, tsa talking about long waits at the airport. even though they ordered

$50 million worth of new uniforms before sequester ticking. so i think the public realizes the political game and ship that is taking place in this. i want to know what you've done as far as the sequestered out that has impacted you and if there's anything there that we should expect as far as furloughs, impact on patient care? >> within cms, we have been working very hard to avoid the necessities of furloughs. we are under hiring freeze so i can't hide i can't replace people who leave. which is a serious issue for me in terms of trying to run a program as people move onto movo other jobs, i can't hired to replace them. and there have been, we've applied this of course according to device we have been given across the board as we are required. >> i'm almost out of time but are you telling me then that this administration is

furloughing air traffic controllers, vital to public safety in this country but if you are not furloughing anybody in your agency? >> in effect what are because we can't come we can't replace people. >> that's not the same paper talking about at least a 15% furlough of current air traffic controllers resulting in delays and perhaps safety concerns, but it is is a political item by the administration. i yield back. >> that recognize the gentleman from texas for five minutes. >> thank you, mr. chairman. i share my colleagues concern but i'll ask you a question that was passed by huge bipartisan vote you can't go for something and say oh, i wish it wasn't happening is happening whether it be cms or tsa or anywhere else but let me get to the health exchange. i have a relating question i think we both share, sharing part of this successful application of the affordable care act, people have access to the care they need. your agency has released a series of letters to issues

relating to qualified health plans, qhps, and injures ashton insurance exchange and essential committee partners. in your letter you states in the urges that your issuers offer provider networks with robust tcp participation. do you agree that it's important that tcp such as committee health centers can be considered as an integral part of the qualified health plan's? >> yes. >> and is seen as encouraging that? >> we are. >> i have another related question but i will submit that for the record. on the top of the premiums we heard repeated last month concerned about the potential rate increases under the affordable care act. concerns there will be some people mainly healthy young men who pay higher premiums under the affordable care act than they pay in individual market. i would like to understand more detail. first, could you tell us a bit about her rates are structure for different groups in the individual market now based on factors such as age, sex and

health status? >> yes. socom in the market today, issuers are allowed to bury rates depending on the health status for person with their sick or expected of higher cost. they are allowed to charge women more than men and treat being a woman as -- >> let me, so older and sicker people pay more come and women pay more for health care right now? >> that's right. >> how with her rates be structured under the affordable care act going to affect? >> health status won't be able to be used as a factor. gender won't be able to be used as a factor. age still can be used but the impact is limited. compared to what it is today. and where you live can be used as a factor. >> so under the affordable care act the risk cannot charge more for women, and those with underlying health conditions, they are limited on how they can charge older people more than younger people, is that correct?

>> that's correct. >> and i know there are groups like young healthy males that look like they might pay higher premiums. my understanding is a number of factors that mitigate these premium increases. first, many of these individuals may qualify for medicaid so they will receive coverage without paying premiums, is that correct? >> yes. >> in addition the affordable care act now allows young adults remain on their parents health care until 26 but that was part of the affordable care act. >> it was spent as i recall being here in 2009 there was not a republican vote to moving that for 26 usual. let me go on. what about those who are not on medicaid or their parents health plan? am i correct that they qualify for tax credits or premium assistance that will reduce their injuries caused? >> correct. >> in to what extent what is mitigate the impact of premium increases? >> it will be significant. >> finally, individuals under the age of 30 may purchase so-called young and invincible plans on health insurance.

i know i used to think that way when i was in my '20s but since i'm now joined medicare last year i know i'm not. can you tell me how these plans will work and how they will reduce caused? >> outsold. that's a high deductible plan which means for your typical doctor's visit will cover it but if something serious would happen to you, you become ill or in an accident it will cover you. those plans would expect will be very affordable for younger people. >> the affordable care act contains a lot of new tools like a rate review and the medical loss ratio's. i come from a state of texas and we particularly don't regulate anything and health insurance except policies. to me one of the best reforms in the affordable care act was the 80% loss ratio. because as an employer of a small business years ago, i was not sure that the premiums we were paying were coming back in medical benefits. but we only had 13 employees. we didn't have a choice but now that small employer will know that 80% of the premiums will

come back in medical benefits? >> that's exactly right, and insurers have to pay back over $1 billion in rebates to consumers and businesses in 2012 because of that program. .. i don't have to say this, but i'm going to say it any way. i have been elected three times by the people of southeast texas to be a member here in congress,

the representative. quite frankly they are frightened, and i don't use that word lightly, but they are frightened about obamacare and what it's going to do to their health care. will become more expensive, will they keep it? promises have been made, and many have already been broken today they want and deserve answers to questions. so i ask you to respect them and requiem for the questions i asked bigot i spent nine years as a staffer in the united states senate. i know a filibuster looks like. i haven't seen one today. thank you. but i will interrupt the questions, so thank you for that. but i am confused. the secretary said there are no

contingency plans for this database to change. he says there are some plans so are their plans? yes or no? we will be ready to operate october 1 of 2013. we are preparing for the eventuality that different parts of the system that we are building may not work perfectly and may need to be improved, and those are the kind of plans we are working on. we are doing testing, and we are doing everything we can to make sure everything works as well as possible, but we know that in any large project -- >> it sounds like you are preparing for the worst but hoping for the best is that correct, yes or no? >> we are realistic in our planning and we will be ready. >> one further question, sir. i talked to many family

businesses back home about obamacare and its impact on the businesses. they provide health insurance to their employees, and every single 1i talked to, every single one has told me i provide health care for my employees because it's good for the business is a retention tool, but if this thing goes down if the health care comes to pass and the changes don't work out i will dug my people in exchanges because they will pay a two or 3,000-dollar fine that is more a benefit. they will be the first one to pull the trigger but they will have to because the market will demand them to. but questions? have you heard this complaint or concern from small businesses? >> i have spoken to

small-business owners and representatives of the small business associations. i think it's important to keep in mind the offered rate for small businesses of health insurance has been declining dramatically over the past decade and more because it's not affordable. and there was before there ever was an affordable care act. i think there are a number of important provisions in all that will make coverage more affordable for small businesses, one of which certainly is the tax credit for eligible employers that can pay up to 50% of the cost of providing health care to their employees. >> every business i've talked to in the situation has said they are planning to drop insurance. that is in stark contrast i know what you're saying that again the bottom line on america is there are going to be changes. people will lose their health care because obamacare. in my state of texas it is going to go on the federal exchange and the enrollment of october

october 4th. one of the problems with d.c. is to impose a solution to all our problems. it won't work. my parents live in vermont. de retired up there and i can assure you the challenges are much different than texas's challenges. texas has a problem in the state they have a high epidemic of diabetes. west texas, they have more, more issues in that area. so how are these differences? will they have some changes in the differences between the states? >> i think they have one of the highest uninsured rates in the country and the affordable care act and medicaid expansion and the exchanges offers an opportunity to get a lot of those people enrolled in coverage. we welcome texas involvement with us and partnership as many

states have to develop a market place that is best suited to the needs of the people in texas. >> thank you, chairman and ranking member for calling this hearing because it's very important we have substantial oversight of the implementation of the affordable care act. the good news is that so far families across america have seen improvements already even before the marketplace is set up and people are enrolling in health care insurance. some that are popular in my community, people age 26 now can stay on their parents' insurance. that has made a meaningful change to over 3 million young people across america. medicare has gotten better. it's gotten stronger. whether it's your prescription drugs that are more affordable or those new preventive services

when you go in for a checkup, that is a very meaningful change for our parents and grandparents. than the one that doesn't get as much attention but shut our that rebates that have come back in the state of florida alone 1.2 million florida families have gotten an insurance rebate because of the terms of the affordable care fact that say when you pay your premiums and or co-payment, that money should go to the actual health care and health insurance rather than profits and marketing and ceo salaries. that has brought back to the state of florida $123 million right back into the pockets of florida families at a time they can use those extra couple hundred dollars, so thank you for that. now we are on the cusp of a positive change for the families across america, so many that haven't had access to the

doctors' visits and with a chronic condition debt to the significant health services they need. so i want to ask you about the outreach efforts especially the navigators that have talked a little bit about that already today. this is going to be a substantial effort as we did in the outreach rollout and how you inform families about signing up and the small businesses about their insurance options. i know that some are concerned the dollars are going to fund these outreach efforts, but how often are we going to educate everyone? i think it is all hands on deck. we need the insurance companies, do we need community groups and community health centers, nurses and what of your hand at home is everyone is ready to join in this effort.

we have 50 million uninsured in this country. people are hungry for information. wouldn't you agree? can you talk about right here at the outset what you are going to be doing in the coming months? >> i will be happy to. the $54 million of the grants and the church groups and the indian tribes, service navigators. we were allocating that money based on a number of uninsured in each state so we try to put that money where we need it the most. there's going to be sort of media campaign to get people to understand more about all in the benefits to bring to them and we will be directing people to go online to health care.

they will be taking in october for enrollment. for the foundation's come from the entrance companies that have an incentive to get people to come by their product, so there's going to be a multi faceted effort to make sure that people know what is in store for them. >> looking at the states that have high numbers of insurance, texas, mexico, florida, we have about 20 to 25%. the citizens outreach in

bilingual in the communities it's important to have insurance agents and brokers involved for the community health centers, doctors, nurses, and i have the brokerage there. one of the qualifications for being in navigator is that you would be able to serve people inappropriate ways and we are definitely expecting to get applications from the groups that are specifically going to target specific groups that are not english-language proficient. we are working closely with the community. with the associations directly and we have come up with a way for the agents and brokers to easily be able to enroll people through the marketplace is and we are definitely expecting that they will play a significant role particularly as they do

today. they are important all hands on deck. >> i was a little bit surprised that there's an excitement out there and my district is kind of like the excitement that he found in his district in texas the people are scared and they are concerned and have businessmen who come and say i don't know what i'm going to do. do i lay off some of my employees to get down under 50? what do why do? they will have all of their part-time employees to wonder 29 hours so that they want to cover them on insurance.

you have people promised to like or insurance you can keep it. it's probably not going to pass the house but it passed out of the state of washington where they currently cover employees down to 20 hours they are going to take the state employees and move them into the exchanges as a proposal under the plan they would give them $2 per hour would help defray the cost but they won't be able to keep the cost they have and folks are being forced out of the plans they like because the states and let's face it if the states can't afford it, a lot of businesses can't afford it either. the states are doing things of push people away from those hours they work or the insurance

that they like and that they had >> alana does provide the grandfather plans are not subject to most of the provisions of the affordable care act, so it is possible for employers to keep the plan they like it they have a plan in place before and it's not changed since the second fleet. they can keep the insurance. >> the employer can keep it but in this case they're looking at moving the employees of of that plan and then to the exchanges because will save the state of washington $120 million. >> i don't know what is happening in washington. i do think that there are a great number of factors that go into employer's decisions about how many hours their employees work and how many the employee health care is certainly but we know under the existing system which has been broken they have a difficult or impossible to get

affordable coverage, particularly with a small employer just one employee who has a serious illness can drive the cost for that employer to the point where they can no longer afford to provide that coverage that can no longer have been under the affordable care act. >> let me tell you what's going on. i will tell you that the excitement that you referenced is excitement of the negative, not of the positive and i'm going to quote now from the olympian or their online publication because they go on to cite worker friendly lawmakers talk about the same bill that this person was opposed to that bill worker friendly lawmakers such as democratic senator kerry and frazier called the bill, quote on quote premature. why, you ask? because the precise benefits, again, quoting senator frazier, the precise benefits available under the exchanges are still

unknown. she said there is a chance that some workers could not afford coverage. that is a democratic state senator in washington who fears putting state workers into the exchanges because they won't be able to afford the coverage. how can you tell the american people and senator frazier that she's wrong and that she has no reason to be feared and if that is the kind of excitement that you're hearing because that is what i'm hearing in my district and obviously senator carol ann frazier a member of the democratic party has that same fear coming from her constituents. how do you respond to that? >> i don't know about her particular concerns but i know what of the affordable care act tax credits will be available to make coverage more affordable beginning in 2014 than it is today. >> and that argument was made on the floor in the state of washington and ms. frazier wasn't convinced. thank you. i yield back my time.

>> the gentleman yields back and i recognize mr. butterfield for five minutes. >> thank you mr. chairman and for coming to be with us today. hopefully you have some very important information that we can all benefit from. as you may know, i represent a jury low-income district in north carolina. in my state we have 1.5 million people who were uninjured, about 500,000 of those are poor people and about 10% of those live in my congressional district and so, i've listened to the questions and answers here today and i can tell you in my district -- i can't speak for others that there is a lot of excitement about the affordable care act, the people i represent are looking forward to it including business people. those who are rational and have taken the time out to study the benefits of the affordable care act for their business.

once they understand it. most if not all of them are ready to embrace it. but i want to take a few minutes to drill down on that program because no and i know that that is so critically important. i see the navigator program as community-based individuals who will go out into the community and go to the hon traditional places, barber shops and beauty salons and even dhaka on the doors to find people who would qualify for the exchange. is that correct? >> that's right. some of these are not people who will sit behind a desk and push some buttons. these are people who will actually beat the pavement and go out and find people to first of all inform them about the benefits of the program. >> people that already do have a track record in the history of helping people in those communities. >> would this include knocking on doors and canvassing neighborhoods?

>> absolutely. stand when a door is not on an individual who was found who would potentially qualify with the program, what happens next? i guess what happens is there is an information session with the individual, but once the navigator determines that this individual qualifies for assistance for the tax credit, what happens next? do you take them by hand to some central location and process the claim? >> i believe the easiest way to get people signed up is online and because of the navigator's would help folks who may not have access to computer at home go to the community organization campaign and help them through an on-line process that can be done. >> let's divided into two pieces. let's say the computer is in the home. with the navigator stay in their home and assist the individual with the application? >> we can help them walk through the application, exactly.

of the person, of course. >> if the citizen does not have access to a computer, then the navigator will enable the individual to go to an office? >> ideally or there is a paper replication and people can apply with a paper replication circassian navigator can sit down with someone at the kitchen table and go to the application and do it that way as well. >> will the navigator see it through to completion? is there a procedure for making sure that the individual follows through? >> there can be a procedure for the navigator finding out what the result of it has been. >> from what i can gather if an individual, let's say a single, healthy, childless adults who makes $20,000 a year, that individual would qualify for the tax credits through the exchange.

but an individual that makes $10,000 who is single and childless and healthy would qualify for medicaid but if a state has declined the expansion of medicaid, the 10,000 of our individual will have no access to insurance is that correct? >> they can still go into the exchange. >> even if they are under 100% of the poverty line? >> they won't be getting a tax credit, you're correct. >> but can anyone under 100% of poverty going to the exchange? >> yes. >> so if someone makes $50 a year of income, if they have the capacity to pay for the exchange, they can go into it? so for a family member to assist that low-income individuals, they could do that. >> they could do that.

>> thank you i yield back. stabenow the gentleman from ohio mr. johnson for five minutes. >> thank you mr. johnson. mr. cohen, has your office done any analysis of the health care law of obama's impact on premiums? >> nope. no analysis. >> that's great. we are going to have a fun session. so, our premiums going up or down for the average consumer? millions of americans don't have insurance are going to have engines in october or under the law? for the average consumer that has health care today are their premiums going up or down? >> i think we have to wait and see when the plans submitted their rate. >> but that isn't what the premise to become president promised. he promised that supporters

would see lower costs. some are people going to see increases or decreases in their premiums? >> we have to wait and see how they come in for 2014. over time people are absolutely will see lower cost as we see more competition in the system, broader risk pool and if you look at the overall health care costs people have to absorb given tax credits, where cost sharing. >> who is going to see lower costs? what demographics are going to see the lower cost? is it going to be the young, is it going to be men, women, seniors, who is going to see this cost? >> we know that women today can be charged that 50% more than men just because they are women say yes they will see lower costs. and we know that older people can be charged often five or six times as much because of their

age and that is going to be limited so they will see lower cost to this and it is anybody's premium going up? >> i think we have to wait to see what the homes look like. speed that is the theme that has persisted in all. wait and see. pass and then let's see what happens down the road. i tell you what that is a dangerous way to navigate the ship like america's economy. you also write these programs will keep individuals in the group markets reasonably priced. what is a reasonable price? surely you have some idea what a reasonable price is. >> i don't have an answer to that question. we can certainly come back. but i can say is we know that over the last couple of years,

health insurance premiums have been going up at a lower rate than they had been for decades before. it's gone up by double digits year after year. >> but of the american people -- they were promised that if they like their current coverage they could keep its, and that costs would be lowered. you just confirmed to me that you do not know that to be true anymore. you don't know. you are having to wait and see. >> over time -- >> i asked if premiums were going up or down and you said you don't know. let's look longer than that. are they going up or down? >> i expect premiums will go down relative to what they would have been. >> 42? >> for everyone. >> so then you must know what defines some reasonable cost you have some idea of what that

range is. >> that is the primary driver of health care costs so in order to have premiums go down, we need to address the cost of medical care. >> we have a very different understanding of what is driving the cost of health care because in my opinion what is driving the cost of health care of is the bureaucracy that has now set itself up in washington to oversee 16 that our economy. i only have a little bit of time left. on the application, one of the questions the applicants are asked is do you think the employer coverage is affordable? do you think the employer coverage is affordable? why do you ask this? what is affordable health care in your opinion?

>> it is defined in the statute. the question as asked because it is one of the eligibility requirements and the statute that depending on what your income level is it is a 9.5% of your income. specs, affordable in your opinion as 9.5 which is almost 10% of a person's income. >> it is and my opinion it is what is infil law. >> what is your opinion of what is affordable? >> i don't have an opinion. >> that's good. all i yield back. >> the time is expired. >> you are recognized for five minutes. >> it's not surprising that from the republican side of the aisle, the relentless opposition to the affordable c.a.r.e. or obamacare as i proudly say goes on after 33 efforts to repeal come successful to repeal the entire bill, but i was a

challenge might colleagues to go out and explain to at least some of their constituents for example, the parents of children with pre-existing conditions to the annual or lifetime coverage limits for the rescissions of policies to going to place for the preventive health care services without cost sharing ought to go back into effect for the young people that are on their parents policies, forget it, they are off, can you explain that to them the medical loss ratio requiring insurance companies to actually pay for health insurance and coverage and tell when and we think you should be discriminated against.

that is a good idea, that about i don't know how many billions of dollars we collectively pay more in health insurance. and so so inside of the program and we want to work with each other we want to correct them rather than just complain. the program isn't perfect we are just months away now for the full implementation for the coverage and the hammes region has requested additional resources to implement all and those requests have been ignored and it seems to me the refusal of my republican colleagues to appropriate the hhs adequate resources to help implement the law is limiting our efforts to

inform americans about obamacare exciting new coverage options, and let me just say that when part de was put into effect, $600,000 was sent by the bush administration for blimps to talk about loan. so could you explain how they would use additional resources that the administration has requested to implement all and how might the refusal to adequate resources hinder the ability of consumers to know about october 1st. >> thank you, congresswoman. we certainly would welcome the ability to provide more grants to navigators out there in the community. we welcome the ability to do more outreach ourselves. as you know, they're has been a lot of misinformation about all.

people really do need to understand the benefits and what it can do for them, and so with the president's budget request we certainly can use that money to do outreach in the community and make people understand what all is and how it can benefit them. >> i would like to say to my colleagues utah about the fear in the district's come and to the extent that there are some problems with the bill, if we could sit down together and find out how to make it better, but a lot of that figure is the misinformation that has been quite deliberately sent out it's hard not to be scared about obamacare and what it might do to you. so, i would suggest that the fear mongering that is going on in all which has now been upheld by the united states constitution that will bring up to 30 million people what the united states of america to be able to have healthcare that

will help us july and the community of nations in the world that declare that health care is a right of the citizens of the country's. >> thank you mr. chairman for your time with us this morning. and my colleague said there is fear mongering on the bill but i'd like to point out that i read an article begin today that the union backtracks on obamacare and the reform of the bill, so i don't think this is a right wing fear mongering we should have a union that is concerned about obamacare and once it is repealed or reformed i think that is where we have significant concerns that must be addressed. are you familiar with the

actuary of medicare clacks stat i know who mr. foster is, yes. >> the testimony that you gave to the house of representatives budget committee year a sole or go. estimate generally but not specifically. they want of the cost down and number two, it won't let everybody keep the current insurance if they like it. would you agree with that assessment? >> i think as you said, i do believe the costs will be down relative to where they would have been. >> it will keep the cost down. >> at least people will have -- >> we will expect the costs to increase to this gimmick people will have the security of knowing that if they have a

series, the care will be paid for. >> we are talking about the cost increases. >> for someone who's never been able to have felt benjamin thank to talk about -- >> what about a person that health health insurance, are they going to be a increase? >> it's going to depend on the individual situation. there are factors and tax credits that are available. >> as your insurance gone down or up? >> i think we had a small increase this year. >> we had more increases in the past two years than for a long time before that. >> it is not new. >> it would lower the cost of health care. >> this is kind of like the washington steppe where we are cutting budgets but you are decreasing the rate is that what you are saying obamacare has

done? >> i believe health care insurance and the total out-of-pocket cost that people have to absorb will be lower than it would have been without the wall. >> so that is an increase in cost. stand it may or may not. >> what is an acceptable increase? what are you anticipating under this bill? >> for women that have had to pay 50% more than men, the effect will be to reduce their cost for people who've had to pay out of pocket for the medical care. >> even though they are increased from year to year? it's just you are saying it might not increase as much. >> i think it is going to depend on the number of factors including the underlying cost of medicare. >> what we ask this will medicare use the cost of and kidcare? >> it will relative to what would have been without fell wall, yes. some of the health care will increase. >> that will depend on factors

for external to the affordable care act. >> maybe i'm not asking very clearly. will health care costs be less next year after the implementation of this bill? >> i think that will depend -- >> yes or no. >> i can to answer the question of what is going to happen next year. i don't know what is going to happen to the underlying cost. >> stevan give the have their insurance and they want to keep that. it's not affected by the affordable care act. they are told there will be able to keep their insurance and they are being misinformed. >> they are misinformed if they don't understand that they are in a plan that is grandfathered as many people are that they could keep that coverage than yes.

>> so because of this health care bill they will keep their health care? >> employers can keep their employees and a grandfather plan and not be affected by the provisions of the affordable care act. >> do you know which plans were grandfathered? if the bill requires them to change the plan doesn't that mean they are going to lose? spinet it doesn't require them to change the plan. that is the point of being grandfathered you don't have to change it if you are in a grandfather plan. >> so they will never have to change their plan? >> as long as the plan does not change significantly in terms of the benefits that the offer connecticut the benefit. >> what is required? >> then they can keep a grandfather plan and they do not have to comply with the provisions of the affordable care not. >> we will recognize him from missouri. >> thank you for being here today. but i have to say if lott walked

through the door right there, i would not be surprised. he could walk in and say you have now entered the twilight zone. there cannot be so much difference in interpretation i don't think other than it is inexplainable. it is twilight zone if that is a word. we have friends of mine on the other side of the aisle, a good friend that spoke a minute ago, and mr. schakowsky. to paraphrase, she said the republican side of the aisle, on the republican side of the while there is a relentless drumbeat of opposition to the president's health care plan. so, i and my mother very good friend over their say something to the effect people across america have seen improvements in their health care, and i think from the questions that you have seen today, that is not some of us are hearing. so i want to start with a couple

of yes and no answers if i may to see if you agree with them. democratic senator max baucus said, and i quote, i just see a huge train wreck coming down because of bumbling implementation. yes or no. >> i do not agree on that. >> let's move to another democratic senator. let's move to tom harkin. senator tom harkin. and yes or no, do you agree with senator harkin that this administration should not be reading prevention fund, rating the prevention fund for the funding exchange expenditures? >> congressman, i really am not going to express a view on that. it's not a decision i made -- >> you can't answer is yes or no question if you agree on a comment a democratic senator made? >> i can't. >> or you don't want to? >> i don't have a view.

>> i really don't know what to say. i guess i will wait for rob sterling to come through the door. >> that would be the second coming. i think he passed away. >> i could see it happening. senator tom harkin blasted the hhs secretary. after we started this hearing, they blasted him for using prevention fund money to pay for insurance navigators saying the obama administration is treating preventive care as a refund. i'm sorry to say this administration just doesn't get it and this is a democrat, this is not the republican drumbeat.

as a 5 billion-dollar weighed on the prevention funds, he said referring to the payroll tax extension president barack obama signed into law that cut 5 billion from the prevention fund this year it is another 342 million-dollar like the prevention fund but a sort of afterthought. islamic i'm going to ask you one more time, do you agree with senator harkin that this administration shouldn't be raising the fund. >> i would have been happy if they have appropriated funding for us to do the work that we needed to do, but that didn't happen. so the secretary made decisions under her authority and i don't have an opinion one way or the other as to those decisions. >> who would you direct me to? let's say from a net i have staff that comes to me and says we are a little confused what is

our health care going to cost? what agency would you direct me to get the questions answered with a been paying for their health care and my staff. if your staff is covered by the federal program. >> we have tried relentlessly because -- you laugh at it but -- >> my staff isn't laughing and its agency serious concern for me. when you have the staffers on this hill that have got college educations, some of them have a law degree and have two or three people per apartment because the cost of living to get by the company with a legitimate question what they are going to be paying next year and think of

leaving the government service and taking jobs and other places it is another serious thing. so we have tried and tried. >> i don't mean to minimize. i was only smiling because i can't help with them obviously. i wish i could but i can't. >> i gave him five minutes and he didn't make it. >> recognize the gentleman from california for five minutes. >> thank you, mr. chairman, and for being with us today mr. cohen. i do have to go back and just reiterate some of the points that have already been made and just get some clarification from you. one, going back to the closing of the preexisting insurance, it's april. when was that closed? >> the federal program and for

the state programs in march. >> okay. for those individuals who would be utilizing those dollars for their preexisting conditions covered will not be able to do so until a january 31st. >> the new enrollees, the existing enrollees are not effective but new people coming into the program will not be able to come into the federal visa program. >> this is the confusing part of it because especially my colleagues across the aisle continuously tried to paint us meaning the republicans here on the other side as the ones who are interfering with anyone getting preexisting coverage and looking at from an unsympathetic standpoint however this program has been cut off and they

support not and here we are attempting to pass legislation to actually help those individuals. >> this is my time, you have had your time to i am perplexed and you clarify that for me. i just want to make sure we clarify that we are talking about months of time that individuals will go without that care. also for clarification purposes, in the discussion you are having with mr. johnson and then also with mr. gardiner, you stated that as of january 1st, 2014 that health care premiums will go down. is this correct? >> no, but i think i said -- what i believe is that first of all we don't know yet what premiums are going to be for the coverage in january 2014 because the plants are just now submitting those rates to their state insurance departments for approval to the exchange's.

>> but that was not the promise. the promise that was made continuously when this was being implemented was that health care premium cost would go down. so i masking you under oath today as you see it so you are no longer standing behind that statement. you are saying that we are -- we do not know, and probably more than likely you are seeing a health care in insurance premiums going up, is that correct? >> no, that is not correct. what i think i said is that for 2014 we need to wait to see how the rate comes in, in overtime i believe that the affordable care act will result in a lower overall cost. >> and what do you base that on? because cbo has been a combination of studies in north

carolina, north carolina health care premium rates will go up by 61 so what are you basing your data, and if you do have studies that show this i would like -- >> i'm basing it on the market place compared to what we have today. >> but that could exist with or without the affordable care at going into effect. we could enact many pieces of legislation working to help -- the small group markets are dominated by one carrier that is 60 come 70 to 80% of the market that is the reality that could be easy with legislation. we don't need this massive takeover in health care

increasing rates by 61%. they're again, i would really hope that you would be able to gather some data, and again under oath saying today that you are basically saying i am incredibly unclear as to what will happen with health care rates as of 2014. >> for most americans, millions of americans were covered by insurance through their employer that in a large group, they are not going to see an effect from the affordable care act one way or another to disconnect my time is up and i don't understand what you base that on. >> if i could ask the gentlelady -- you ask a question why will he was under oath the price is going up and not going out and you didn't get a chance to answer that question so i'm going to give you a chance to answer that question with regards to you previously stated above the price is not coming at you said you couldn't guarantee

that. are you going to elaborate on that statement? >> mr. chairman, let me ask -- mr. chairman, i think i am next. >> before that consent, listen the previous questioner advice to was under oath and then asked him a question and refused to let him finish answering that question. >> why would be more than happy to restate my question. >> if i can ask you to resubmit that question for the record. >> it's wrong for the members of the committee to try to put the witnesses in a perjury. when they come in here -- no man i am clearly restating the

government is under oath and he was not answering the question. >> i would like to ask if the gentlelady would submit that question. >> i would be happy to answer. >> we would be sure what exactly you are asking and sure of your answer to the estimate i recognize the young lady from tennessee. >> thank you mr. chairman. you've certainly been patient with us and we do appreciate it. i want to go to the statement you made i think in response to the question that over time you saw the insurance cost would come down. this is something that i always watch very closely because i am out of tennessee. and you are probably familiar with this and i know i have worn out of my committee members that are talking about it and i asked the secretary about it repeatedly. and i just want to let you know that it seems from what we found

when we got the care. there it quadrupled in the cost over a five-year period of time. so what we found is there is no example where the near-term expenses are going to yield a long-term savings in health care. and if you do have those examples, i would love to see them because through all of this debate of obamacare, nobody has been able to show one. not with public option care, not with community rating, not with any of this in new jersey or tennessee or hawaii or anywhere else, not with any of these waiver programs. there is no example for the decrease cost. you increase access and get better outcomes. so if you can prove us wrong on that, then you know, feel free to bring forward an example.

do you have an example? if they don't know how they are going to pay their medical bills and worry about going into bankruptcy because their child is sick, i think for that person a lot of this discussion is really irrelevant. and that is what we are going to change. >> let me ask you this i want to ask a question about the navigators to be it is it true that the navigators cannot have health care or health insurance experience? >> nope. >> that isn't true? >> nope. >> because that has been a part of our understanding that is out there and also on your increased competition theory i have to tell you what we have seen in tennessee when next you have government control, when it is government controlled that is what runs people out of the marketplace. >> this isn't a government control this is a marketplace with -- >> i beg to differ.

let me show you a few examples of what is happening in tennessee. yesterday of course the rate filings in maryland showed a small group coverage increases are going to go up 145%. and we've got examples in tennessee that we have been pulling our companies so this year and next year. this year they are going up anywhere from 26% to 132% we are seeing 40 to 50% increase is expected for next year, and in the young adult population the survey that we have had here on the energy and commerce committee is looking at 135 to 185% come same heuvel mazie their insurance co of $3,000 for a family since this was passed so what do i tell people that are coming to my town halls. what we tell these people?

>> you told them they should shop on the market place to find the plan that is best for their family and is the most affordable for them. and that is what we expect to be able to provide for people. >> it's going to cost more. >> if they've been going up year after year after year long before we ever had obamacare, so it has nothing to do -- stand it is a percentage that is greater and i think that you probably are aware of that. do you believe that the increases are tied to the taxes and the mandates and obamacare? do you believe that is in any of the drivers? >> the impact of the taxes on health care premiums are very, very small. >> $165 billion is small? >> the impact on premiums. >> you think $165 billion of new taxes has a small impact on

premiums? how would you classify small and large? >> we have a reinsurance program that is going into effect that is estimated to reduce premiums from a thing otherwise would have been. >> let me ask you a little bit about that today i would like to know if you find it ironic that we are now subsidizing the insurance purchase while at the same time we are making the insurance more expensive by the mandates that are being done with. but we have increasing subsidies and we are putting the taxpayers on the hook for even higher federal spending. do you find that odd or i ron at? >> i think americans are paying for the cost of uncompensated care when people show that the emergency room and those costs -- senate so you are comfortable

with the possibility -- >> we are going to -- >> yield back to the estimate we are moving back to a system we have more coverage and spread the cost over more people and the wealthy to the benefit of all americans. >> i think the gentlelady for tennessee on the uncompensated care i hope it is an area that you will submit more questions to the record. i ask unanimous consent and written opening statement of the members be introduced into the record and without objection other documents will be entered into the record and in the conclusion i would like to think the witnesses and members that participated in today's hearing which would be you, mr. cohen. i remind the members the of ten business days to submit the other questions for the record, and i ask that mr. cohen we would respond promptly to the questions. i appreciate you being here and we will see you again soon. thank you. the committee is adjourned.