this week the supreme court heard oral argument in hall v. florida a case testing the limits on the court's ban against executing the intellectually disabled. the issue rests on how states define intellectual disability when using iq tests. florida has an iq cutoff of 70 for determining intellectual

determined ability. the court will decide if the cutoff is so rigid it's unconstitutional vote. in 2002 the supreme court ruled that executing those who are quote mentally is quote cruel and unusual punishment. the court decided at that time to leave it to the states to determine the criteria for meeting the standard. this is an hour. >> we will have argument this morning in case 12, paul versus florida. mr. waxman. >> mr. chief justice and may it please the court. in atkins versus virginia this court held that the constitution bars executing persons with mental retardation. that is persons with significantly sub average intellectual function concurrent with deficits in adaptive behavior with an onset before the age of 18. because of the standard error of

measurement that is inherent in the iq test it is universally accepted that worsens with obtained scores of 71 to 75 can and often do have mental retardation when those three prongs are met. the statistical error of measurement or saddam is --. >> a line has to be drawn somewhere. and we did say in atkins that we would leave it up to the states to determine the standards for this issue. so what is the rule being announced today? are we saying that 70 is not okay and that 75 wood the? how would you announce the rule? >> well let me first take some issue with all due respect with your characterization of atkins. what this court said in atkins is not that we leave it to the states to establish the standards for the clinical

condition of mental retardation. what you said quoting ford is we leave it to the states -- we leave to the states the task of developing appropriate ways to enforce the constitutional restrictions that we announced. the rule that we advocate and the only real question presented in this case is just this. if the state conditions the opportunity to demonstrate mental retardation on obtained iq test scores they cannot ignore the measurement error that is inherent in those scores that is a statistical feature of the test instrument itself. >> we didn't base our decision in atkins upon the study of what the american psychiatric association and other medical associations considered to be mental retardation.

we based it on what was the general rule that states have adopted and the large number of states had adopted 70 is the criterion. the criterion is whether the american people think is the level of mental retardation that should make it impossible to impose the death penalty. we didn't look for the answer to that question to the apa or any of the other medical associations. we look to what the states did. what has changed and let the states do? anything? >> justice scalia i would like to respond with four points and i hope desperately i will remember them. first of all what this court said was, this court number one it made clear as it is reiterated in miller versus alabama and reimburses florida that while the consensus or a perceived consensus among the

states is important the ultimate test as this court's conclusion about what the eighth amendment does or doesn't allow. in making that determination on page 318 of this court's opinion in atkins this court after reciting footnote 3 the virtual identical clinical definitions of mental retardation and in footnote 5 pointing out that 70 to 75 is the establish cutoff for mental retardation, this court said the following. quote clinical definitions of mental retardation require and it recited the three tests. because of their impairments, mentally retarded persons by definition, that is by the clinical definition, have diminished capacities to understand and they recited all the disabilities that made the imposition of the death penalty for persons with that clinical

condition unconstitutional. as to what the states did, the court did refer to i believe 18 state statutes. not a single one of the state statutes and not a single decision of the highest court of any state or any court in any state applied 70 or two standard deviations from the mean without reference to the sem. the only statute that addressed it in 2002 when this court decided atkins was arizona which expressly provided that the sem must be taken into account in evaluating and obtained iq test. >> does establish by whom? >> the standard error of measurement which is established by the creators of the tests. it is not something that clinicians dream up. it's not something that is decided by the a.i.d. d. or the

american psychiatric association. it is inherent in the test and all clinicians are told both professional associations made clear because it is simply a statistical fact it must be taken into account such that and obtained iq test score is actually the result of an obtained iq test score is a test band. >> for what purpose did they establish these? is it for the purpose of determinidetermini ng who is so incapable of controlling his actions that he shouldn't be subject to the death penalty? is that what they're looking for when they establish 70 to 75? what are they looking for? >> intelligence tests supply, i mean they weren't created for the definition, the clinical definition of mental retardation. the rear created to determine a

proxy for true intellectual function and therefore a true iq test score. the general. >> i'm not talking about iq tests in general. i'm talking about why did they pick -- they use to pick and now they pick between 70 and 75 is the upper limit. the upper limit for what? i assume it's for people who would profit from medical treatment isn't that it's? >> there are many reasons why a person's iq, that is a persons intellectual functioning may be important for a hold for i.d. of reasons mental psychological developmental developmental and as an opponent of the clinical clinical -- the eighth amendment. >> mr. waxman would you just clarify one thing? what you refer to as the sem is not limited to an iq of 70 to

75. that's across-the-board. >> the statistical concept of the standard error of measurement applies to all forms of testing. >> it has nothing to do with the death penalty and mental retardation. >> no, i'm am sure that when archimedes based his experimental observations he also recognized essentially the schematics. >> may i come back to something similar that justice sotomayor came up with. in your view does the constitution permit the state to establish any hard cut off, let's say 76? you can't do that. >> i think he can because the standard definition that is intellectual functioning is two or more standard deviations below the mean. i'm sorry let me just explain.

if they state is using -- if the state is using an obtained iq test score as a proxy for true intellectual function that has to take into account the standard error of measurement and therefore states like mississippi and oklahoma that in fact establish a cut-off of 75 in our view is constitutional as this court announced the class of individuals. >> so that is just saying -- when you say the standard air you are talking about a degree of confidence, right? >> correct. >> your submission is that you need to have a 95% degree? the that's what the fight is to? >> on a test that is norm 70 as

two standard deviations below the mean. if there is a standard error of measurement, this is not my submission. this is universal. >> one just trying to figure out what it means. >> what the it means is that someone for example with an obtained iq test score of 71 as mr. paul received has a 95% probability that his score will be between 76 and. >> so why 95% wax where does that come from? why are you pick in 95%? why isn't at 90%? >> i am not doing any picking. >> what the organizations picked 95%? >> it's been two standard error or two sem's which is 95% for decades and decades. universal consensus in footnote 5. see which party has the burden of persuasion on the issue of iq and what is the standard?

>> it varies from state to state. >> i mean what is the eighth amendment require? does the eighth amendment permits the state to assign to a defendant the burden of persuasion on iq? iq above 75 and they assign that durden above 70 and they assign that to the defendant and if they can what is the standard of proof that the defendant has to meet? >> the short answer is the agreement i will come to is yes so you can see where i'm going but we believe it's entirely constitutional for the state to assign the burden of proving mental retardation on the defendant and insofar as the clinical definition recognized by this court in atkins is a three-part conjunctive test. i think it's fair to say that a logical consequence of that is as to every component the burden

may constitutionally be placed on the defendant. the burden with respect to prong one is the burden of proving significantly sup average intellectual functioning of which a true iq score is a probabilistic piece of evidence. >> why can't the state -- you told me the state can establish a hard cut off and you told me that a state can assign the burden to the defendant. now in the case of someone who scores 75 is it not the case that there is no more than a 2.5% chance of that person's real iq is 70? how does that square with any burden of proof or any standard of proof that might be assigned on that point? that's what i don't understand about your argument. >> what the me see if i can

explain this. first of all this is a man who has a 71. >> i understand i'm talking about the general issue. >> yes to the general issue but we say it this way. the whole idea behind measurement error is that you can't make a valid judgment that somebody doesn't have a true score of 70 or below if the obtained score is within the measurement error and even more fundamental than that your question suggests and the states suggestion suggests that diagnosing mental retardation which is the constitutional inquiry is just a probabilistic inquiry into a persons quote true iq score but true iq scores themselves are a statistical concept. it's a score that you would get on a hypothetical test that had no measurement error and this is my point. through iq is not the same as

intellectual functioning. an iq test, however perfect they may be don't perfectly captured persons intellectual function. >> understand the argument but that doesn't seem to be consistent with your point that the state can establish a hard cut off of 76. you get 76th get 76th on an iq test and that's the end of the inquiry. a person does not qualify under atkins. >> this would not be a standard i would endorse but i believe that in light of the consensus test that all professional organizations apply that was recognized in atkins, a score that is above the standard error of measurement of two standard deviations above the mean would be okay but the converse point it seems to me is not true which as we know for a fact that many

many people who obtain test scores of 71 to 75 in fact have mental retardation and if i may just point out that in this case there were six experts who fully examined mr. hall were supervised the full examination of mr. hall. they were cognizant of the iq test scores that he had received and each one of them opined without hesitation that he had mental retardation, functional mental retardation. >> the district court did make the finding that he did not show adaptive behavior. the district court said that was so and all of those experts that you refer to were speaking retrospectively with little

evidence of what the defendants condition was. that is what is in the joint appendix. >> that is correct justice ginsburg. now the state crile -- trial court ruled that it would not accept evidence as to prong's two and three but it did allow mr. hall's lawyers to make a proffer pursuant to the states agreement that there could be a proffer in some expeditious manner and that is joint appendix 158. one of the two grounds that we appealed to the florida supreme court on in addition to the hard cut off at 70 was the fact that in fact an expeditious proffer did not in fact permit us to put on all of our evidence about prongs two and three and the florida supreme court and this is page 125 of the joint

appendix said we don't even consider that question because we uphold the rule in cherry. >> that limited view to the retrospective ,-com,-com ma the trial judge asked a simple question. how did the defendant adapt in prison? one expert as saying i didn't test for that. i don't know why i didn't do it in the same expert said he had in fact done it in other cases. >> you are correct. part of the expeditious proffer, the expeditious proffer was limited to the testimony of a belief actually only one of the experts who examined them into the adaptive testing function and that expert did say that he didn't test in prison.

here is again a universal professional consensus that adaptive functioning is tested by a adaptive functioning the real world, not adaptive functioning that occurs after 35 years on death row. and in fact we also know to a clinical certainty that because mental retardation is a condition that is both developmental and nods transient, that is there has to be a demonstrated onset during the developmental period but one doesn't emerge from the condition of mental retardation on for example mental illness. >> you talk about the condition of the mental disability that is involved here. i want to go back to something he said in response to justice scalia. the question was on the line of what does it mean to have a disorder under the dsm? obviously one thing it means is that the scholars can talk about

it and they can all focus on the same subject. does it have any meaning other than that other than it is an objective index and an objective characterization that certain people have, certain mental conditions? is that what it means? >> that's exactly what it means justice kennedy. what it means is as this court recognized it is a clinical condition of unlike her example insanity or incompetence. >> is there any evidence that society in general give substantial deference to the psychiatric profession in this respect? are there any studies on that or anything we can look to to see if that is true or not true? >> i'm actually not aware of anything that suggests that society doesn't look to professional evaluations to do this and in fact if one looks

only at florida's system, florida uses mental retardation as a determinant for things other than the death penalty. the existence of the condition for educational remediation, vocational rehabilitation and in those instances as we point out in our brief, florida does apply to standard error of measurement >> we have later in the week an argument about economic theories and it's a little different because in that case it's the courts own jurisprudence and we have not said as we have in atkins that it's up to the state do you think we differ this idea to psychologists and psychiatrists? >> i think it has to be much much more because as this court has pointed out this is a clinical condition. it's a condition that can only

be appropriately diagnosed by professionals. >> this apa is the same organization that once said homosexuality was a mental disability and now they say it's perfectly normal. they change their minds as to whether 70 or 75 is the new tests for mental retardation. >> the latter is not true. the standard -- two things that are not in dispute in this case. we are only here talking about prong one which is significantly sub average intellectual functioning and nothing else and everyone agrees, all the states agree, they all agreed at the time atkins was decided that the clinical condition is defined by three elements and the first element sub average intellectual

function is defined as a person whose intellectual function is to two or more standard deviations below the mean intellectual functioning of contemporary society. >> mr. waxman can i take you back to a question that the chief justice asked because the chief justice says where does the sem come from and it is the test makers determination that this is the margin of error big issue in 95% confidence. i guess the question here or one question here is why do we have a 95%, why do we need a 95% confidence level and you could see it either way. you could say gosh we are putting somebody to death. we should have 100% confidence level or you could say as i take it just as alito's point was well look the burden of proof is on the defendant here. so what 95% confidence level

seems awfully high. we should ratchet it down to 80% so why this purpose do we have to go with a test makers determination that five is what get you a 95% confidence level? >> so the fact that two sem's issue 95% confidence level is a statistical fact. i take your question to be wide our professional associations using that? >> that is not really my question. they might use it for a wide variety of purposes. the question is why is their determination that it's useful for a wide variety of purposes to have 95% confidence level why is the states that with that for this purpose? >> because this goes to the reason that they use it. the reason that they use it is because of the inherent in rescission and testing in general but in particular testif something like relative

intellectual functioning. there are so many -- it is so common for people for a righty of reasons obtain a 71 or 72 in fact to have mental retardation and because evidence of intellectual, and a valuation of intellectual function involves clinically much more than a test score and look what happened in this case. all of the iq test that word ministered and all of the wexler tests fail within the standard error of measurement. they were accompanied by the administration of further intelligence testing testing for confirmatory. >> is that what you won't? i go back to justice sotomayor's question. you start mucking around with 95%. it's all over the law. 95% is a classical measure by scientists of when they have confidence and in fact

regression analysis seems to establish the fact is a fact here that is in tort law or whether jury trials are discriminating because they don't have black people on the jury. it's all over the loss so i assume you are not asking us to muck around with that number because i don't know what the consequences would be. you get the same test six times and now we have reduced it from 5%. if he's above 70 all the time it could be 1/100th of 1%. is that what you want to have happen? >> as to your latter point. >> and my right and what i said? >> you are not right in some of the things he said. the last thing you said is not right. >> before the last thing. see the last thing is important. >> i didn't say was an important but my thinking is my dependent on being right --. >> your right that 95% is

generally a feature widely adopted as a confidence level and it's particularly important here because the constitutional guarantee announced in atkins is against the execution of persons with mental retardation. >> one justice breyer's last point before your time expires executive think this is important. what about possible tests? what if someone is given 25 wexler tests and 24 times the person scores 76 and 11 time the person scores 72. how would you deal with that in a state that has a hard cut off? >> this is the last point that i wanted to get to and i think the best thing, before my time runs out i want to point you to page 10 footnote 3 of our reply brief which cites the oxford handbook of medical diagnosis or something and we have given you the pages. on those pages that explains why when you have a situation of somebody who takes more than one

test the appropriate determinant is very much not the average. it is what is called the composite score in the compost at score is different and in fact for people below the mean, below the average because you have to take into account the fact that regression towards the mean and also the fact that a person who takes two, three or four tests, multiple tests changes the bell curve on standard deviations of the example that is given in the oxford handbook is simple -- similar to this case. there were four tests in a average is 72. the composite score and there is a statistical explanation for how it is arrived at at the standard error of measurement is actually larger using a composite score so that is why as to justice breyer's last point simply averaging obtain scores does not in fact give you

a better handle because they were so few people who score significantly below the mean on multiple tests. what clinicians use is a statistical analysis that takes into account the different calculation of what they standard aviation below the mean is. >> that is not consistent with my understanding and i don't claim to have a deep understanding of the. the answer to my hypothetical where there are multiple scores and i will ask the state the opposite question. what would you do there? >> we know what florida does. >> what the's or require in your view? >> in our view the eighth amendment requires that if a state chooses to use iq test scores as a proxy for intellectual functioning rather than a full inquiry of intellectual functioning it cannot refuse to employ the

standard errors of measurement that is inherent in the test. >> you would not need to go on to adaptive behavior. >> our view is that the state consistent with atkins could say that if you have no obtain score on a valid properly ministered up to date test that is below 76 you may constitutionally be precluded. many clinicians would go ahead and do adaptive functioning and other intellectual testing but our view is that states like mississippi and oklahoma that said 76 as the cutoff you would comply with atkins. may atkins. may i save the balance of my time? >> thank you counsel. >> general winsor.

>> mr. chief justice and may it please the court. this court should affirm the decision of the florida supreme court because it represents the legislative judgment fully consistent with atkins. i would like to start by responding to your question justice alito about what you do if multiple scores and in fact in this case we are not talking about someone who had one or two iq scores. when you look at the weschler test which is the petitioner claims is the gold standard via test scores of 71, 72, 73, 74 and 80 and as we understand what the petitioner would have this court do is to take some of those lower scores and subtract five points from them. that is not consistent with the materials you cited in the footnote and if we look at the example here they do apply statistical principles to arrange of supporters that they did not simply simply take the lore schooled and subtract five points. the logic i would submit is fairly obvious. he you couldn't have a situation where taking this case where you have a low iq on the weschler of

71 and a high iq on the weschler of 80 and at the same time there's a 95% chance his scores between 75 and 85 and also a 95 95 -- >> one justice decide this case and establish the principle, the very significant principle where you have a criminal defendant indicted for murder whose scores are 71, 72, 73, 74 and 80. that is all you are trying to persuade us on? >> your honor i'm not happy having to go through this and all future cases where you have somebody who has 69, 73, 74, 75 and 81. don't you have some more general principle other than the particular scores?

>> we certainly think the particular scores in this case are good enough but we have a broader principle which is that when you're dealing with things like mental diagnosis or things in the medical field generally there's good reason for this court to do as it has historic day which is to defer to reasonable legislative judgments >> let me ask you this. suppose the american psychiatric association and oliver are fictional associations do use the sem. it seems to me what the state is saying here in declining to use that is that it declines to follow the standards that are set by the people that designed and administered and interpreted the tests. >> i have two responses to that. if the constitutional -- and it's not that there were constitutional rule that the eighth amendment adopted all kinds of clinical criteria that

the apa. >> this is not clinical. this is statistical. you keep saying clinical but the sem is not a clinical -- clinical judgment. so standard error of judgment. >> that's right but justice kennedy's question was how can florida deviate from what the dsm or the ai dd suggests her best practices. >> this has nothing to do with best practices. it has to do with what the test givers say is the right way to look at their tests. >> the test measures published in the error measure but it's the dsm and the ai dd that are suggesting how many deviations you should use. >> no they are not challenging the two standard deviations. they are saying if you want to prove functioning abilities in the other two factors of your test based on the score of a

test that says it has a sem f5 then you have to use the sem. it's very different. they're not saying you have to take that number and declare that person mentally intellectually challenged. you just have to apply the other factors. >> is a three-pronged test soon and need since you would have to demonstrate the assistance of all three prongs but with respect to the 95% interval --. >> i thought that you'd don't have to go to in your view you don't have to go to the second and third standards if on the first it's 70 or below. i thought a adaptive behavior doesn't come into the picture and onset doesn't come into the picture if the iq is above 70.

>> that's correct your honor. it's a three-part test in the medical community doesn't dispute that in the petition doesn't dispute that. to achieve a diagnosis of mental retardation you'd have to demonstrate that you meet each of the three. >> there may be agreement among you on this but with atkins says in three parts as you say. one part is significantly sup average intellectual functioning that's the first one. so what you say is if it's above the 70 on an iq test that's the end of that it and you don't go further. what they say is i want to tell the jury something or the judge of the judges deciding. judge i have an expert here. thank you. expert i want to tell you your honor that number 70 that is subject to air. it could be and indeed the state can do the same thing.

if it's 68 the number 68 is subject to error. if somebody measures 68 you could bring in the witness andy would say 5% of the time it's within five points either way. i think that's all they want to do and there could be other ways of going about it. maybe you did the same test six times and that may not eliminate but if i reduce the possibility of error or there may be other way of doing it. you call a psychiatrist and he says okay or an expert. 72 still we have other ways. we have other ways not just tests. i think you would do the same thing if you wanted to on the downside. that might lead people to being executed you see and that is their position i think. you may get to do it on the upside. what's wrong with that? it doesn't sound so so terrible and anyway the eighth amendment,

this is a way of enforcing the eighth amendment. this doesn't need to be an independent eighth amendment devaluation. >> what is wrong with that is substantially if you raise the limit to 75 as mr. waxman suggested you could. >> doesn't raise the limit to 75. what it does is it says that i don't want to repeat what is at 70 they call their expert who informs the decision-maker just what i said and i would take a little time, maybe 15 minutes, maybe a little longer. that is what they want to do i think. and what's so terrible about doing that? >> was so terrible about doing it is you would end up increasing the number of people who would be eligible for mental retardation. >> only those who in fact are mentally retarded. >> they are not mentally retarded. there's no to scream it at the

appropriate threshold. it's a matter of what does it take to prove by clear and convincing evidence which is a standard of proof that they have as a matter florida law and the standard of proof that is unchallenged in this case. all florida recognizes is the best measure of your true identity is your eye obtain iq test score. >> is the determination here is whether someone is mentally retarded and the iq test is just a part of that. it's a part of one prong of that determination and what you're cut off does is it essentially says the inquiry has to stop there. the question is how is that at all consistent with anything we ever say when it comes to the death penalty because when we have this whole line of business that says when it comes to meeting out the death penalty we actually do individualized consideration and we allow people to make their best case about why they are not eligible

for the death penalty. essentially what you're cut off does is it stops that in its tracks as to a person who may or may not even have a true iq of over 70 and battled bone what stops people in their tracks who may not, who may be mentally retarded. >> with respect to the mitigation this action in florida's completely separate so he does have individualized decision-making with respect to whether to have a death sentence in the still has an opportunity opportunity -- >> with respect to this critical question we said you cannot execute somebody who is mentally retarded and he says now you are preventing me from showing me that you are mentally retarded. you have an iq test a part of one prong of a three-pronged test. you have an iq test that says i'm not mentally retarded but

that iq tests may be wrong. it's not given that you are not using the margin of error. >> with respect to the iq testig that's a recent development and one of the problems we have with the idea of constitutionalizing medical criteria is that it is changing. if you look at dsm-iv in existence at the time of atkins the dsm-5 replaced it last year they said intellectual functioning the prong was defined. >> mr. winsor we don't allow all factors to be considered, do we? with the state have been able to refute his assertion of mental retardation by pointing to the fact that he's the one who sees the young woman, who pushed her into a car, who drove the car with his accomplice following in another car and who killed her and killed a policeman too

later. could the state bring that it and say somebody who is mentally retarded enough, so mentally retarded as to not be responsible and not be subject to the death penalty certainly could not pull this off. this is not a person who is that mentally retarded. could the state show that? >> the state has a -- on the adaptive functioning portion of the test. there's a three-pronged test the intellectual which has historically been about iq until recently in adaptive functioning talks about how people react in the ordinary world to difficult situations and some of what you talked about mayor and may not be relevant but further responding to the earlier question it's not that florida is not allowing evidence that florida florida's meek in a finding that you cannot satisfy satisfy -- >> seems to me to follow

mrs. kagan's question and i think it's a very important question we have been talking here about the inaccuracy to some extent of iq scores and your rule prevents us from getting a better understanding of whether that iq score is accurate or not because we cannot even reach the adaptive functioning prong. you prevented at the outset and you don't prevented if it's under 65 for under 70. >> you would have to satisfy it all that with respect to your question about whether adaptive functioning evidence can affect the reading of the iq we submit that is not the case. that is why the discreet inquiries so if you have multiple test scores.

>> doesn't eliminate whether or not the iq test is exactly as reported or if it is subject to some decrease or increase depending on what the evidence of adaptive functioning shows? >> no your honor. that would be modern dsm but again it used to define the intellectual functioning prong is being determined exclusively exclusively -- >> i will read atkins again and atkins did refer to the adaptive functionality. >> make no mistake there is in adaptive functioning inquiry. that is one of the three prongs they have to prove intellectual and adaptive functioning. >> but that was under dsm-iv? >> that has been a part for decades. what is changing is the way the medical community looks at how to measure iq or what to do with iq. >> at the very least you give someone an iq iq test and he scores a 71. now he might actually have an iq of 71 or we know from the way

the standard margins of error work he might have an iq of 61 and he won't let him go to the adaptive behavior prong of the test and show that you know and show that he can't function in society in the ways that atkins seems to care about as justice kennedy says. notwithstanding that this iq score number might be accurate or might not be. >> the adaptive functioning is a component that the guideline for dsm would agree that no matter what your deficits are in adaptive functioning you do not qualify for mental retardation diagnosis without also showing substantial deficits in intellectual auctioning. >> i know there is less emphasis now on the iq test then there was before but when the iq test was used, did they always use it as a fixed number or did they always include the sem in

informing the clinical judgment? >> the sem has been part of the question. i'm not disputing that. >> that has been the same in all clinical diagnoses? >> i think they application a dsm has been component of this for sometime. we don't dispute that. we do note the emphasis of iq is decreasing and are suggesting that you should rely less and less on iq. >> they are not arguing for that. they are just arguing that we should stay where it has always been a which is within the dsm? >> you should apply the dsm as a way clinicians do because that's the way the clinicians do and if you go down that road is difficult to understand the principle on where that would stop. >> does the state that doesn't use an iq test always require a 95% confidence level and always require 95% confidence level? let's say a school wants to

identify gifted children and they say the child is gifted if the child has an iq of 130 or above so they say if you haven't obtained score of 130 you are in you are in the gifted child program even though there's the same percentage that would be the case with respect to someone with an iq of 70 or a person is below 130. would there be something wrong with them doing that? are there places that do that? >> certainly an asset to the decision-maker who is relying on the tests for whatever the purpose of it is. the decision-maker relying on an iq test score and take your example about someone at school they can set that is high or low as they want to because they might want to be particularly restrictive and that is one of the areas where what we are dealing with here in the atkins context is fundamentally different because we have an adversarial process at least

with respect to contest it -- we have a burden of proof clear and convincing evidence burden of proof that is not shared in clinical settings. there are a lot of reasons why it's very different to make a diagnosis in a clinical setting particularly where the emphasis is on providing services or making services available to people and we don't have the same incentive to be overinclusive. >> general could the state changes statute to say we are now using a threshold of 60? >> the state certainly -- i think the answer to that is yes although it would be more difficult to defend because we want to do is go back and look at the consensus that was a part of fact, the consensus that supported the decision in atkins but before making a decision on 60 as a threshold or some other number you would want to look at the whole thing. >> i don't understand it. you will have to explain it to me because i thought 70 was very

long-standing. everybody is agreed that it's 70 for many decades, maybe forever so how could the state -- why could the states say no to that? what would you look at? >> i think you would look again at the special interests issue in atkins and those that with the state may need to be more restrictive because of the incentives that inmates would have to score lower than they would ordinarily perform at that you wouldn't have any clinical setting or necessarily a school setting. >> that is where you -- that is why you have the other two prongs. >> you certainly --. >> when you have a fixed cutoff you have the ability to defeat the other two prongs that you are stopping them based on a test score that holds the margin of air and recognize the designers of the test.

>> we are not stopping them. all we are stopping is the consideration of the other prong but it's clear that the first prong can't be satisfied so in the breathing their society that it necessarily has to be -- you wouldn't necessarily have any iq. >> did i misunderstand the case? i thought the florida court held in effect in my words that the iq was a threshold in order to make this inquiry and you had over 70 you could not make the showing. please correct me if i'm wrong. >> that is correct to what happened in this state and the state recognize that the iq scores that were an issue worth all of the 70s so it it's sort of an ordinary evidentiary motion where you have a different case we have to prove causation and damages.

>> if you did not satisfied prong one you do not get two prongs two or three. >> by the taint -- same token if you don't satisfy to to you all get to prong threes of the evidentiary ruling is simply a recognition that you have to satisfy all three prongs which again. >> what happens if right now under the law of florida assuming this case and there is an iq score of 71 and the prosecutor points out to the judge and the defense lawyer says your honor i would like to bring in my test expert here who will explain to you even though this test did shows 71 there is some very small but some probability of error and it could the as high as 76 and he would like to explain to you that is the situation and therefore can i have you testified?

does the judge have to let him testify or not? >> if i understand the correctly if you have one score of 71 and without obtaining a test score of 70 or below. >> so this is the case. if you would to present that expert they would say no. back to my first question which i won't repeat and this man has been on death row for over set set -- 35 years. >> 1978 was the act. >> mental retardation and tell 10 years after his first conviction. >> he raised it in the hitchcock sitting in the late 80s and had some of the same evidence. >> it's gone on this long. 1978 is when he killed this woman. >> there've been a number of appeals and in this case a number of issues raised but yes. >> general, the last 10 people florida has executed spend an average of 24.9 years on death

row. do you think that is consistent with the purposes of the death penalty and is consistent with sound administration of the justice system? >> i certainly think it's consistent with the constitution and i think they're obvious. >> that wasn't my question. is the consistent with the purposes of the death talty it's designed to serve and is a consistent with orderly administration of justice? >> is consistent. >> go ahead. >> it's consistent with the purposes of the death penalty. >> mr. winsor most of the delay has been because of rules. >> of course most of the delay and in this case it was five years before there was a hearing on the question. did the attorney general of florida suggested to the

legislature and the measures or provisions or any statutes to expedite the consideration? >> your honor there was a statute last spring called the timely justice act that authorizes the number of issues they raise events presently being challenged by the florida supreme court. but i would like to talk about about. >> me i'd suggest why you have this policy? isn't an administrative convenience? tell me way of the policy. >> the people of florida have decided it's an appropriate punishment for the most horrific crimes. >> no, no, no why you have the 70 threshold. that is what i was getting at. florida has an interest in ensuring that the people that executions because of mental retardation are that mentally retarded and if we apply the rule that the petitioner has suggested it would double the number of people who are eligible for the exemption and that is inconsistent with

florida's purposes of the death penalty. >> that is just to say that would double the number of people eligible for some of them may be mentally retarded. presumably we want accurate decision-making with respect to this. >> they are not mentally retarded if they don't have an iq score of 70 or below. >> they are not mentally retarded if they don't have an iq of 70 or below? >> don't believe that yourself. this is a tool to decide whether someone is mentally retarded and it's a tool that functions in one prong of the three-pronged test. >> it is the first prong. the iq test is the first prong so no matter what the adaptive principles principles or you must demonstrate and again in his adversary setting you must present clear and convincing evidence that you have an iq of 70 or below and what we believe if you say there's a 95% chance my iq is somewhere between 60 and 70 that you have not

satisfied that first prong. i'd like to talk about the 95% confidence level because it is not the case that you have a 95% chance that your iq is 70 or below and in fact it's a small chance. with the confidence interval measures you have a 95% chance that your true iq is within five .7 if the measured iq platts you would have an equal chance of having 66, 67 or 68 so if you take a test over and over again you will score near the peak of the bell curve most of the time which is where your chirla iq would he and the outer 5% threshold is a small likelihood that is your true iq and with each additional taste you take the odds would go down. so it's simply not the case that you can say well he has a 72 so he is satisfied very good microsatisfy the first part because it's a statistical matter. as a factual matter every

weschler testing is taken and submitted into evidence with over 70. yet as 71, 72, 74, and an 80. he would have to look and say what are the odds that it was that testing that was under 70? is it possible? certainly is possible. you can exceed beyond the 95% confidence level and nobody disputes that the true iq is something that is incapable of being measured. the iq test is what the community has. it's the most objective of the three prongs which is why we believe it's particularly take important to focus on because it's the most objective testing we have. >> how many states retain that practice with a rigid 70? >> your honor there are eight states that have a hard cutoff and a 70 or two standard

deviation which approximates the same thing that have been recognized by the states. they're a number of other states that have statutes similar to florida's but they have not been interpreted one way or the other. >> of those how many have a sem? i thought it was for. >> those eight year honor have fixed cutoffs of 70 or two standard deviations. >> that's something that. >> in most of the us is as they what florida has done which is they have a statute determined by the courts. >> that is what i'm saying. only four have been determined without sem. >> i apologize. >> i thought only for were interpreted without using the sem? >> no year honor we have alabama florida idaho kansas kentucky

north carolina and virginia and maryland which is repeal the death penalty but -- we would ask respectfully that the court affirmed the florida supreme court. >> thank you journal. mr. waxman you have one minute remaining. >> in-state versus cherry which is the florida supreme court decision that established this rule that if your lowest score or your only score is 71 that applies when you take one test for multiple tests. here i'm quoting from the supreme court's decision in cherry that quote it is a universally accepted given that the sem is a universally accepted given and as such should logically be considered in determining whether a defendant has mental retardation and what the court said was we have to read the plain meaning of the florida statute in the florida statute says two standard deviations.

.. let is no what you think at facebook.com/c-span or tweet us with he hash take c-span chat. >> suffice to say most of health policy really isn't health policy at all.

it is essentially budget policy. and so the congress just ducks on so many of the big issues and ends up putting together something that in the parlance of washington might be called a patch. maybe it's an extension, maybe it's called a stop gap, but the fact it, it ducks the big issues. it repeatedly ducks the big issues. and particularly on medicare, when you have 10,000 people eligible for medicare every day. there is a very real cost attached with that. so, now the challenge is to try to find a way to move beyond this fixation on budgeting. it would be one thing itself was sound budget poll circumstance but so often we, as i indicated, don't get at the structural kinds of issues, and move beyond

the sort of lurch from one kind of budget calamity to another and come up with some sensible budget policy. >> this weekend, senate's finance committee chair ron wii den on -- wyden on the challenges faced by hospitals, and then the cultural ties between russia and ukraine on c-span 2, and on c-span 3 american history tv, the grounds and architecture of george washington's home. >> authors, former members of congress spoke today at a summit critical of the u.s.-israeli institute. next, a panel on the political influence of israel, with janet mcmahan, managing editor for the washington report on middle eastern affairs. this is 45 minutes.

>> thank you very much, congressman. we are just honored to have you with us today. thank you so much. and thank you for everything you have done over the years. [applause] >> i'm january mcmany, the managing editor report on the middle eastern affairs and i'm going to give you a different picture about the yacht congress. our magazine has been following pacs since 1986, and over the years i have gotten a lot of call friday pool who want to know how much congressman they're person got from aipac, the american israel public affairs committee. and i immediately tell them that

aipac itself does not make campaign contributions. and i think it's very important, not to accuse aipac of doing something it can truthfully deny, because that makes it too easy for aipac to deflect the argument and let itself off the hook. this is not to say, however, that aipac has nothing to do with campaign contributions. and that's i'll get to shortly. in 1990, when we published self pac there were 120 pro pacs. now there are 30. according to the center for responsive politics, i highly recommend 31 pro israel pac contributed a total of just under $3 million to congressional candidates in 2012. and i'm using 2012 figures because since the election is

over, all the numbers are in. while this year's election is stale work in progress as far as campaign contributions are concerned. as you can see on this chart, these pro-israel pacs gave almost 60% of their contributions to democratic candidates in 2012. so definitely not the case that only republicans are eager to do israel's bidding. al but bun pro israel pac gave to democrats and all bit six to republicans. pro-israel pac have several interesting characteristic inch their filings with the federal election commission they all list themselves as unaffiliated. now, most pacs have no problem identifying their affiliation or industry. for example, the seven pacs under the national association of realtors' umbrella, which list a the top pac donating in 2012, all list their industry as

real estate agents, and each of the seven pacs includes association of realtors in its name. i'm going to show you the names of the 31 pro-israel pacs that open secrets has listed. what is interesting is all but four of them have very innocuous, one might even say misleading, names. those four exceptions of the world alliance for israel run rough jewish coalition, the national democratic jewish council, and allies for israel. what this means is that even the most conscientious voter who knows the name of every christianitiesor a candidate's campaign, might not know that the candidate is receiving money from pacs that advance the interest of a foreign government. another characterric of pro israel pac is they prefer to give to reliable incumbents rather than challengers, regardless of the candidate's

party or religion. they also give priority to members of congressional committees responsible for issues of concern israel, such as foreign affairs, armed forces or budget. and they like to extend their largesse to members of congress in leadership positions. for example, steny hoyer takes from pro israel pacs used to be fire mid ling, but as he climbed the leadership ladder his contributions increased to the point he has now received more than a quarter million dollars. another tactic is called bundling. that is when a pac collect checks from individual donors and hands them en masse to a favorite candidate this. way the candidate has no doubt about the source of the contributions but the pac is not required to disclose them to the fec. bundling began to become popular around 1994, when talk of campaign finance reform was in the air.

it's a way to minimize the public impact of pac contributions. so most traditional pro israel pa -- pac use bundling. according to open secrets, the pro israel norpac, the major contradictor to mark kirk's campaign, gave hem 30804 tuesday but individual associated with the pac ponied up more than $58,000. similarly, kirk received $114,904 from pro israel pacs according to open secrets but nearly five time that much from pro israel individuals. so pac contributions, thanks to bundling, are just the tip of the iceberg. what is most striking about these 30-odd pro israel packs is their pattern of giving. once you have read their fec

filings its almost plea tickettable who the other ones will give to and i have gone through these pages of fec reports. in fact, these pacs operate in lock step to such an extent that some of the pac that nominally represent a certain state don't get to a single candidate from that state. for example, here at the washington reports lest of the top ten recipients of pro israel pac contributions in 2012. you can see that steny hero -- and ben cartwright was under four in the senate. neither, by the way, faced a tight re-election campaign. now, one would assume that some of the thousands of dollars these two men got came from the maryland association for concerned citizens. the pro israel pac based in their home state. here are the house candidates the maryland pac gave to in

2012. steny hoyer is nowhere to be found. similarly, while searches in vain for ben carton among the candidates who received money from this turning pro israel pac. instead the maryland association for concerned citizen is gave to candidates in california, nevada, and arkansas but not a single candidate in maryland. seems rather curious, leading one to wonder how these pro israel pacs choose their beneficiaries and that's where aipac comes in. a memo leaked to "60 minutes" and the "washington post" in 1998 revealed that aipac exercises a high degree of oversight and coordination over the smaller money-giving pacs. the memo, written by aipac's assistant director of political affairs, instructs the subordinate to pressure several pac to donate to specific candidates. the first item is a little hard to read.

i'll read says ice pac has done nothing in the colorado, louisiana, and missouri rate, they have given $500 to dashle. on 6/30/86 they had. $180,000. try to bond more. so this memo makes clear that the recipients of pro israel pac contributions are not necessarily selected by the individual pac making those contributions. despite this smoking gun memo, the federal election commission classifies aipac as a membership organization and this means that aipac does not have to reveal sources of income or expenditures. now, each of these 30 pro israel packs that donate to candidates musts a here to fec regulations which limit campaign contributions from pac to

$10,000 per candidate per election 5,000 for the primary election and another 5,000 for the general election in november. but if there are 30 unaffiliated pacs all giving to the same candidate, that's a potential haul of $300,000, not $10,000 per candidate. indeed forks his first senate race in 1998, the year of the aipac memo, tom dashle, who went on to become senate majority leader received more than $260,000 in pro israel pac contributions in 2010, mark kirk received over $100,000. more than any other house or senate candidate that year. and as we have seen, that does not include contributions from pro israel individuals. so not only does the favored candidate benefit. but because it's broken up into small are components, the extent of the lobby's influence on american elections is hidden. for example, there is no pro israel pac listed as being among

the 2010 top ten pac contributors for by the center for responsive politics. that year pro-israel pac contributioned nearly $3 million to congressional candidates, the sixth largest contribute you're ahead of the ilwe. by comparison in 2012 the two arab american pacs, the arab american leadership pac and the action committee gave a total of $20,000 in campaign contributions. less than one'% of the tote -- one percent of the pro sill pacs. in 2012 pro israel pac gave 150 times more in campaign contributions there's no question they bask in their reputation of invincibilities but that may be more shallow than it appears. in 2010 it was clear that the last person the lobby wanted as

senator from kentucky was rand paul. we know that because pro israel pacs gave his republican primary opponent $33,500. and 16,250 to the democratic candidate for that. for a total of just under $50,000. rand paul got just $2,000. but he went on to win the election. even the candidate who got the most pro-israel pac contributions in 2010, mark kirk, who now hold's president obama's seat from illinois, barely won his election. despite a massive $115,304 in pro-israel pac campaign contributions and he raised more than 4 milk more than his opponent. he still just barely made it. kirk's history of pro-israel pac contributions is instructive. he started out getting $7,000 for his 2000 race. and it went up dramatically for each race thereafter.

and when he got $19,200 for a house flays 2008 it was clear that they were setting him up to run for the senate. until recently i never heard kirk described as anything but a moderates republican. as far as i know his unwaiverring support of israel was never a campaign issue. and the main stream media didn't raise it. yet the evidence was there for all to see on his senate campaign web site. not only does mark kirk write his name in hebrew but it's not in the stars and stripes but the blue of the israeli flag. so, even when the mainstream media don't talk, campaign contributions do. i hope and urge you to take this information and make it public by attending campaign events and directly asking the candidates what they've done to deserve this money, by writing letters to the editor, et cetera. let your fellow constituents know that their representative in congress too often is putting

the interests of a foreign government above their own. thank you very much. [applause] >> now i'd like to introduce former representative cynthia mckinney of georgia, who knows what it's like to be a target of the israel lobby. she was disappointed she could not be with news person today, but she had a prior commitment out of the country. however, she was kind enough to videotape a message for all of us. >> this is cynthia mckinney and i am pleased to be able to make this video presentation for the washington report on the middle east. the way in which one can best understand the terrain is to do the research.

-- go to the congressional record and read laying out the facts. earl hilliard was a member of congress and served a sme. he was from alabama. i was from georgia. he was the first african-american to be elected sincegress reconstruction, and i was the first african-american woman to be elected to congress from the state of georgia. so earl and i together went to and we bothd.c., served on the international relations committee,nd we th we both were targeted by the pro israel lobby, merely because we

attempted to do our job and represent our constituents and represent the good people of the united states. i've written a book, the name of the book is "ain't nothing like freedom" and it explains my experiences with the pro-israel lobby from candidate to having a redistricting case go all the way up to the supreme court, and the antidefamation league becoming a party to that lawsuit, joining in with five racist whites who did not want black representation for them and their community in georgia in the congress. the next part of the comments

i'd like to make are around this issue of being caught in the eye of the storm. in a political campaign, the idea that is put forward is that you have to -- if you want to prevail, if you want to win, money, message and media are ways in which you can direct the torrent of the storm rather than to back victim of the storm. the pro-israel lobby usually has whole lot of money, and those of us who act with conscious generally don't. you don't have to equal the dollars in the bank. what you do have to do is have enough money in order to do the things that are necessary in order to have a successful campaign. enough does not necessarily mean

the same as or equal to. i ended up being extremely embarrassed for no fault of my own, and then only to be told, when i challenged andy, i said, what happened? why did you do this? then andy said that he just didn't want to make them upset. him not making them upset meant that i became expendable to him and i was his friend. my very first chief of staff was his daughter. and that was the way i was treated because he didn't want to make them upset. another item i just jotted down in my notes was for me, for critical discernment, knowing who is who in the zoo. we need to read the media of the

other side so i make sure that i read forward, i read the jewish telegraphic agency, knowing who is who in the zoo will also lead you to my next topic, which is, the 99% club. we have members of congress who are wonderful on 99% of the issues, 99% of the votes. but it's the one issue, when it comes to israel, and the united states' relationship with israel, and holding israel accountable for reaches -- breeches international law, breaches of u.s. law, and our just sense of human rights and

dignity, they're not go on those issues. we have lots of members of congress in the 7899% club, but 799% unfortunately is not going to get that -- that 99% club are not going to be the members who will stop us from being involved in these wars. they're not going to be the members who will speak up win the united states is violating human rights, and just basic dignity of other people. the last item i want to discuss is why is this important? it's important, one, because there's a group of us, we care about the dignity of the earth. we care about human dignity. we care about liberty, and we also know that you cannot support those warmongers, those who are ready to kill in an

instant, those who hold cabinet meet examination decide they're going-- -- meetings and decide there's gore to assays nat people and those who decide who support a president who, by executive order, by writing an executive order, will condemn to death an individual, orthos who will not stand in the way of the machine, the war machine, when it decides that an entire country has to be destroyed. we have to know who is who in the zoo. and 99%, that 99% club isn't good enough. it hasn't been good enough for the people of palestine. not good enough for the people of libya. not good enough for the people of syria. it won't be good enough for the people of ukraine. that 99% club is the club that, at the end of the day, is at the

cutting edge of everything that we are against. and so, therefore, it's time for us to decide that we are going to win. it's time that we become the candidate who will say, no, to this awful agenda that dehumanizes, opresses, and represses. i hope that you have received my message and that you understand that we have to utilize the tools that are there before us, the writings of others, the statements like gus savage's "laying out the facts." that we have to understand who is our friend and who is in opposition to us. and sometimes our friends come from places where we least expect it and those who are opposed from us come from places

where we least suspect it. we have to understand we have to remain open, our senses attuned to this new paradigm that has been thrust upon us, but if we want peace and not war, if we want dignity and not repression and oppression, if we want love and not division and hate, then we're going to have to adjust to this new political paradigm and find friends in places that we didn't find them before. we're going to have to do things we didn't think we could do before, and we're going to have to step outside of our level of comfort. so, for our sake and our children's sake, let's do what we have to do to become winners. thank you.

[applause] >> thank you from afar. cynthia mckinney. finally i'd like to introduce linda handily, the director of the was washington report on middle east a fairs and will give us a complete picture. >> you have heard about the high cost of israel to our democratic political process. you'll be hearing much more about the costs americans have paid for the israel-u.s. relationship. i'm just going to focus on the dollars and good cents. americans are concerned about domestic issues. as our nation emerges from the 2008 financial crisis. we're worried about unemployment, rising food, fuel,

affordable housing and healthcare costs, and also concerned about our aging infrastructure, crumbling roads, bridges, and decaying schools. deteriorating water systems and electrical power grids. despite our economic -- domestic economic fears, americans are generous. many of us believe we should help the poor, not just here at home, where we have nearly 50 million americans living in poverty. we also want to give food and medical assistance to help the hungry and vulnerable, especially children, survive conflicts and crises in the developing world. most americans would be surprised to see how little foreign aid our country actually gives as a percentage of our gross domestic product when compared with other nations. foreign aid is only one percent of our federal budget. but in tough economic times like those we are facing today, foreign aid is sometimes

considered to be low-hanging fruit, easy to cut, because it does not directly benefit americans. and we are cutting back on aid compared to previous decades. i challenge american taxpayers to look a lot more closely at who gets 3.1 billion of u.s. foreign aid dollars every year. do you know that more than five% of our -- five percent of our foreign is a subsidizing one of the top ten most powerful countries. israel, a population of 8 million, the same number of people who live in hong kong or new jersey, is the largest recipients of u.s. foreign aid. and that has been the case for more than a generation. 16 years ago my dad, richard kurtis, wrote an article called "true lies about u.s. aid to israel" for the washington report. it could have been written

today. most aid recipients are developing nations which either make their military bases available to the u.s. or have suffered some crippling blow to their abilities to feed their people, he said. israel, whose troubles arise solely from its unwillingness to give back land its seized in the 1967 war, and return for peace with its neighbors does not fight those criteria. israel tries to give americans the embrace that they are in grave danger. they face annihilation. their urgent appeals bring in significant charitable contributions, both from well-mean egg van gel cal are -- evangelical christians and jews. donations to 27,000 nonprofit organizations in order to help the needy, including jewish immigrants and israeli soldiers. who knew we could get a tax write off by sending pizza ands

sodas to israeli soldiers and tanks at checkpoints. birthright israel sent 37,000 young jewish people on three ten-day trips to israel each use. wealthy americans donate 660 million a year for these trips, and the students are not permitted to travel to the west bank, gaza 0, east jerusalem. does israel really need our handouts? let's compare israel's economy to other countries. israel's 2013 per capita gross domestic product was 34,000 hundred. below britain at 37300 and france at 35700, and just above the eu at 34,500. according to the national power index, israel's army ranks sixth in the world. israel has nuclear weapons, unlike any of its neighbors.

israel ranks fourth in technological capacity and is among the world's leaders in science. israel's unemployment rate its 6.2% and america's is 7%, and europe average unemployment is 12%. israel ranks 15 on the u.n. development index, illustrating the high quality of life for jews living in israel. israelis can expect to live until they're 81.8. and american's life expect tenancy si is 78.6. israel's state-funded healthcare is ranked fourth in the world. and the u.s. is in the bottom of bloomberg's list of 48 countries. s i mentioned, israel receives more than 3.1 billion in direct foreign assistance each year, which is roughly one-fifth of americans' entire foreign aid budget. u.s. secretary of defense chuck hagel recently promised this aid would not be reduced, even while

he listed significant cuts to america's defense budget. in fact, in june 2013, the house armed services committee voted to give israel an extra half a billion dollars in military aid for missile interception systems. president barack obama boasts the u.s. has never given so much military aid to israel as under his president si. the congress watch expert tallies up u.s. aid to israel for a magazine, as a conservative defensible accounting of the u.s. district aid to israel, mcarthur estimates -- the estimate does not include the cost resulting from the u.s. invasion and occupation of iraq. hundreds of billions of dollars, which many believe to have been undertaken for the benefit of israel. for the year 2014, israel has

received $3.4 billion from the foreign aid budget, and 2 billion in federal loan guarantees. that's $9,315,068 per day. 365 days a year if you add grants and loans israel has received since 1949 a grand total of 134.21 billion. excluding the 10 initial u.s. government loan guarantees. -- 10 billion in u.s. government loan guarantees, and these calculations are modest. a respective economist, dr. thomas stauffer, estimates israel costs the u.s. 1.6 trillion between 1973 and 2003 alone. more than twice the cost of the vietnam war. and that is not all. israel gets some unique

benefits. washington has granted israel 19 bill in loan guarantees in recent years to make it easier to borrow overseas. israel gets aid money at the start of each year, unlike other nations. this means israel can stat earning interest on the money right away, and the u.s. government, which operates at a deficit, must borrow the money to pay israel and then pay interest on the amount all year long. israel can use 25% of u.s. aid to buy arms from israeli companies. congressional legislation required us to maintain israel's qualitative military edge. that means anytime another country in the middle east buys u.s. arms, we have to make sure israel gets better weapons. we regularly transfer surplus military equipment to israel. israel is now storing equipment worth more than $1.2 billion.

well, america also gives 1.5 billion to egypt's 85 million people. actually most of that goes directly to egypt's military. for meeting its obligations natural the 1979 egypt-israel peace treaty. jordans' 6.5 million people gets 660 million a year for keeping peace with their neighbor. add to -- aid to israel is a subject that rarely makes it into the mainstream media. we are were stunned when walter pinkus, who reports on intelligence and foreign policy for the "washington post," tackled this normally unmentionable subject. days after israel's cabinet cut nearly 2 million from israel's own defense budget, on october 18, 2011, pinkus pointed out that if israel can reduce its defense spending because of domestic economic problems, shouldn't the united states, which must cut military cost

because of its major budget deficit, consider reducing its aid to israel? i'd like to conclude by stating the obvious. the u.s. president and congress give aid to israel for domestic reasons. in order to please jewish and evangelical christian voters who are often more pro-israeli than israelis. it is mind-boggle that when its comes to israel, u.s. taxpayer's large yes -- large jess has -- israel has the green light to use the aid for military operations which destroy palestinian and lebanese roads, water lines, electrical plants, police stations, shops, homes, schools, orchardses and lives. sometimes israel demolishes projects like parks, playgrounds, ports, and other vital infrastructure paid for by american taxpayers and donors.

it's past time to halts u.s. aid until israel complies with u.n. resolutions, were draws from the occupied territories and makes piece. according to surveys, growing number of americans want israel -- israeli aid levels the same, reduced, or cancelled. with the prospect of prolonged fiscal austerity in the united states, overall american public support for foreign aid made diminish the years ahead. economic conditions in the united states should affect future aid to israel. cutting off aid to israel is the logical and economical and ethical thing for americans to do. thank you. [applause]

>> thank you, delinda, very sobering. if there are any questions we can take them now, including questions for congressman finley. he is in the audience right now but we can get a microphone to him. we'll start with you. >> my name is allan kahn. and i am from warrington, virginia. i'm 72 years old. so i learned so many things in my life, especially living in the united states for 40-plus years, and i was a little boy, i

was gassed in some -- she has her own son, too, so when the time come to eat lunch, she will make bread and a little butter on top of the bread for me, and give the bred -- bread to her son has no butter on top of it. i said, why? then i find out one day she put big chunk of butter inside the pocket of the bread. this is how we are treating the world and the israelis. >> thank you very much. >> i guess we'll alternate sides here. >> why has it not been possible to designate aipac as a foreign lobby? >> well, the fec, for example, has called at it membership organization, and we actually -- the washington report and other

distinguished people thought a suit against the federal election commission asking that it classify israel as a political action committee, and we did not win the suit. it was thrown out because the fec changed its rules and all of a sudden aipac did fit the criteria. the foreign lobby is -- that's part of the justice department, and the justice department has not -- they've kind of let it slide. they have not insisted that aipac be a foreign lobby. and fact -- i shouldn't talk about this because grant is the expert. when it started out it was a foreign lobby and kept morphing into different forms and now they don't -- people who arrest aipac don't have to register -- people who represent aipac don't have to register as agents of a foreign government. so the rules are not enforced and other rules make it possible for aipac and other lobby

entities to just slide under the radar. >> my name is yusef. i was born in palestine in 1935. i became a refugee in 1947. i now live in michigan and i'm 78 years old. i plan to be a candidate for the u.s. senate from michigan. [applause] >> thank you. i want to thank allison weir and the group that has brought arthritis to light. it's phenomenal that israel is being exposed for what it is. i heard congressman finley speak about the two-state solution and i want to tell you, congressman, with all respect, it is totally unacceptable for us.

it is only 28% of the land and we will always be refugees. i think we should open up the borders and make palestine and israel one nation, and all people live there. [applause] >> thank you. >> i just like to say in response that my -- well, besides mark kirk, carl levin is retiring at senator from michigan this year and he has received more pro-israel pac money than any other member of congress and his career total is three-quarters of a million dollars. >> hi. my question is regarding what you -- what you said about the number of pro-israeli pacs has been sinking from over 100 to now there are currently 30.

and i was wondering if there bass a certain trend with regards to private individuals donating? because we saw that sheldon atleson donating 10 million to mitt romney and then you have one on the democratic side donating millions doom you think this kind of -- do you have any opinion whether this is purposeful or is this just -- they just happen to be seeing more private donations. >> i think the landscape has changed with the superpacs and the citizens unitessed ruling. it's making it possible for new categories of contributors to enter the arena. so, i think that the law has changed, and that's enabled these other large pacs to come into existence, and in some ways i think a lot of them don't have to report their donors while the small pacs have to report. so it's even less visibility, less transparent than the small

pacs are required to be. >> my name is carlson and i'm from connecticut. i used to read the new east report which comes from aipac, and years ago i read in there that they ask each and every incoming congressman to sign a pledge of loyalty to israel, and i'd like to ask paul finley if he knows about that, and i'd like to ask anyone else if they can responsible to that. does each and every congressman have to sign a pledge of loyalty to another country? >> there is no requirement but many of them do, and those who don't are headed for trouble because the lobby for israel wants a pure support, pure level of support in both houses of

congress. they don't always give it. this past year we have seen two occasions when the lobby did not prevail. ... yria, and the people back home made it plain to their representatives that they did not want that to happen and it died. there was another occasion in which israel did not get its way, and that had to do with the preliminary agreement on the go she nations with iran -- preliminary negotiations with iran. it may be they are on the downward side. i surely hope that is true. but maybe the american people are being better informed about

the othere iran and issues that come before congress. i know that a lot of members of and paidare bought for. you might as well face it. and they are not going to change. no resolutions that we have passed here will deter them. my book had two impacts, one very desirable, the other, not. one impact was to alert many people to the menace posed by the lobby to our country. signal toher was a the new members of congress, if you do not want to have the fate that came to paul findley

and others, you better go along with israel. it has been a two edged sword. i am deeply grateful for what the washington report does on awakening the american people to the facts of life. a reach a big audience, i think about 25,000 readers of the magazine, but it is only beginning, and one thing we all could do is to encourage other people to read that magazine. i have a number of friends who everyo its arrival other month, and they consider it the best in the world. thank you. >> thank you very much. here, the gentleman here in the second row. i just would like to ask, you

suggested that aid should be cut off until israel accepts peace or just peace. but in the sense of values of fairness and assist, right and that, what do you think the arab world should do in order to convince the united states that their national interest also is with the arab world? >> would you like to start that, paul? thank you for your question, ambassador. perhapsomments i made were not well understood. meritk it has unique because it appeals to the israelis who are troubled about the future of a jewish majority state. arabemographic tide of

worth rates -- birthrates in another generation is going to result in more people of arab ancestry than jewish people in the areas that israel controls. now, how are they going to do with that when the crisis comes? will they abide by what a rabbi called for in a book that he wrote some years ago -- arabs go, or they have to as their own survival say they have to drive the arabs out of the territory they are now in? that is hardly a prospect that appeals to anyone, i do not believe. and that is why i am very pleased with the proposal that i have made, which guarantees that

israel will continue to be a jewish majority state for a long proposal,use under my the entirety of palestine will be outside the perimeter of israel and not counted. in -- the arabe people in east sure some -- in east jerusalem would be outside. it will increase the lifespan in three or four interactions to a jewish majority state. but at the same time, it brings palestine,a state of and that i think is highly to the advantage of every party in the middle east and every party worldwide. so i hope you will give serious

thought the choices, because we are headed for a dismal period in the middle east the way things are going. majority occurs, there will be constant pressure to change the name of the state to the old name, palestine. that will cause a terrible backlash by the jewish people in palestine. it is far better to make a compromise that brings about an independent palestine right now and also brings about the assurance of a jewish majority israel for some time to come. thing?i add one i would like to add one more thing to the arab laeague

ambassador's question, what the arab countries should do, and they are starting to buy weapons from other nations. they are starting to look to china and other countries to buy things. they can use their economic power and they are already. i think americans, you have been friends with us for a long time, and maybe it is time for us to show tough love. i will be a little bit of a hog are and ask paul findley question. what the congress people say in the locker rooms about being cold and all the time to israel? what did they talk among themselves? >> a few of them will say, paul, i agree with you, i admire what you're doing, but i cannot do it, you understand? their attitude.

most of them are good citizens or want to be. israel asfluence of of today is so great on capitol see dangers of rviving the next election. most people in congress like to get reelected. that is number one. we can take a couple more questions. add what thed to arab american is doing here in the united states, please, can you answer me? b americanra are doing here in the united states, but what about us here? >> you mean why do not you have pacs?

>> right. >> i think arab americans are from many different countries and they are trying to make a living in a very potentially hostile environment. there's definitely a change after 9/11. i think people were very fearful so they areout, and newer to this country, they are not coalesced around a single issue, and the jewish lobby has been in development for 100 years. it is an uphill battle, but i think you have to just start participating and just keep at it and hope that as that is happening, other americans are getting more informed about what their money is doing and what the government is doing. i do not think it is only up to arab americans, by any means at all. >> [indiscernible] >> ok, i

>> we're reaknees -- reassessing the relationship, and thank you, all, for still being here, and with this first next panel, we'll be addressing specifically how the special relationship with israel came about. i'm honored to introduce the first speaker, dr. steven walt, professor of international affairs at harvard university and editor of cornell university and author of the israel lobby,

thank you. [applause] >> in 2006, we published an article in the london review of books entitle the israel lobby. by that summer, it had been down loaded about 300,000 times, generated a fire storm of criticism including some intense personal attacks on john and myself. although most of the criticisms were without foundation and personal smears were predictable, by mid summer, the tide had begun to turn. the journal's foreign policy organized a symposium on the article, and by fall, there was a book contract. we wrote the article, and we wrote the subs kept book because

the israel lobby was a taboo subject people knew about, but hardly anybody talked about openly, and we wanted to challenge that and open up a broader discussion. again, i take the opportunity to look back and reflect on what's changed since 2006. to do that, we summarize briefly what was said in the book and what we did not say. second, i want to consider what changed since 2006, but also what has not changed, and, lastly, i want to offer some recommendations based on our experience at this point what course of action would i prescribe going forward? so what we said, core organizations are very straightforward and not especially surprising. first, we argue there was a special relationship between the united states and israel that was unlike any other bilateral relationship in american history. we gave it enormous economic

military and diplomatic support and did so almost unconditionally. moreover, israel was largely immune from criticism by american politicians. in fact, american politicians routinely expressed a level of devotion they would never utter towards any other foreign country. second, we argued you couldn't explain this on either strategic or moral grounds. israel knife been a strategic asset in the cold war, but the cold war was over, increasingly a liability, and the miranda rule case gushed undermind by the treatment of the palestinians and especially by the occupation. yet the special relationship kept getting deeper and deeper and the question was why? third, the answer was the political influence of the loin. we define lobby as a loose coalition of individuals and organizations that work to promote the special relationship, and the groups did not agree on every issue, but all of them work to convince

american politicians to support israel no matter what. we emphasized that these activities were, in most respects, no different than other interest groups like the nra, farm lobby, other ethnic lobbies, they were just particularly good at it. we showed in considerable detail how groups in the lobby worked within the political system to get sympathetic people elected or appointed to keep positions to keep those with different views out of power and pressure politicians to embrace policy preferences. we documented how individuals and groups in the lobby try to control discourse on this subject by writing books and articles themselves, by funding think tanks like the washington institute by putting pressure on other media organizations whenever they publish or broadcast things critical of israel or the lobby. some members tried to speer

opponents usually by accusing them of being antisemitic even as completely false. we argue the special relationship and the other policies pushedded by the lobby were not in the american national interest or in israel's interest either. this makes it impossible for the united states to be an honest broker, which is why american efforts to solve the conflict had failed. they had grown steadily for more than 40 years. the lobby and neoconservatives within it played a key role in the bush administration to invade iraq in 2003 and the lobby work to thwart iran, a policy, by the way, that failed to halt iran's nuclear program and increase the risk of war. we argued the united states should have a normal relationship with israel, not a special relationship. w