those all over crimea as well. but the question is going to be, how too ukrainians look at this? my guess is that support for drawing closer to the european union, which by some polls in the fall was anywhere from 51%

58%. in eastern ukraine where they're likely uncomfortable with what happened in kiev, how the government left and how that crimea is a bigger shock and may have the unintended consequence, perhaps of helping the country unite. and the last point, they have to be very careful how they handle nato. i think i hear what mike is saying and i guess i would just disagree. my guess is that over the next ten years you're not going to see ukraine seriously consider joining nato, and i say this as somebody in 2008 who testified to congress that ukraine was ready. they checked all the boxes but in the last five years i would re-assess that. even when you had a pro-nato government, the popular support never got above 28%, and nato is never going to seriously

consider a country for membership when you bring in a country where the population is not comfortable with that and it's difficult for me to see that changing. so on the one sense the russians ought to be assured there's in the a realistic prospect in the next five to ten years of ukraine joining nate though. the problem is there's no way that the united states government and nato can or should say to the russians, no, we're not going to take it in. that's the hard part. there's a reality, which is they won't be there, though i just think with the open door and all of the statements made since then, it would be very hard for nato to tell the russians, ukraine is off the board, even though that may reflect where things are de facto. >> mike, i'd like you to responsibility to that a little bit and also just to step back a little bit and think about -- let us have a sense what you think the administration's long-term vision for ukraine and for this crisis is? do they see it in the way steve

present ordinary too they have an alternative view? >> first of all, i obviously learn a lot from listening to steve, and i have no doubt about his reading of the ukrainian politics and public opinion or of the history of nato's commitment to ukraine and trying to keep alive the option of potential nato membership. and i realize it's now hard to walk that back and it might seem like too much of a concession or apiecement of putin. i guess the way -- however, think if it got to the point where we had to find some way to address this question as an impasse in an otherwise potentially successful negotiation, you might be able to find some clever language. might be able to say, we cannot imagine ukraine joining nato under current circumstances. and the would have to be some kind of a broader shift in the security environment in europe, maybe creation of a supra nato additional confederation or grouping that russia could be part of as well, and i don't know how you word this in a

communique, but you can basically keep alive the option of ukrainian membership in the long term under different circumstances, without necessarily ruling it out but also making it clear russia there was going to be more of a delay than just the five or ten years that steve talked about, all he could take to the bank. if we had to fine creative wording i would encourage us to find the creative wording. that would be reduce it to yes or no, option or not. secondly in terms of america's long-term interests -- i want to turn the question back to you -- jeremy, we're glad to have him back. he was in the administration and was always a thoughtful brainstormer on new ideas, whether wind or outside, and you have your own insights and thoughts how the administration might want to handle this. i would say the first instance we obviously would like it not to be a major international crisis. we don't need another. this sounds like usually on the

talk shows the next step is to say, all obama wants to do is build this nation at home and withdraw and blah blah blah and he is weak. most of us should want this to go away. there's really nothing to be gained for the united states by an escalating showdown. leave aside whether it can be resolved peacefully in the end. the showdown itself produces nothing desirable. so the showdown needs to be minimized, and we need to bet back to encouraging ukraine of whatever strife it's current leaders may have. their economy is one of the worst performers in europe in the last 20 years by almost any measure leif i'm signposted out 20 years ago poland and ukraine were sim floor size and population and gdp. today poland has three times the gdp, and today poland is ranked 50th in the world in good governance and ukraine is

155th and that was true under not just yanukovych but his pret scissor so my overall view -- begs some of the questions you can follow up with -- but diffusing this and not making it anymore of a zero sum showdown than necessary is the core interest we have. there's no other big thing to be gained here. >> okay, so, we have -- we're about halfway through, which for those of you keeping score of the moderator, the exactly right time to go to the audience. let's take questions from the audience and then come back to the panel. when you ask a question, identify yourself and make your your question ends with a question mark. >> thank you, i. a barry mitchell and rite the mitchell report. i want to come back to a comment steve made earlier about -- with

respect to how ukraine handles the situation, which is do nothing stupid. no unforced errors. and put that into perspective of , as fiona calls him, mr. putin. what -- i'm interested to know what acts of commission or omission putin could engage in, if there's anything such as engauging in an omission but you know what i mean. how can putin blow this? it seems to me he is already essentially said, i don't care what the rest of the world thinks. i'm doing what is in the interests of russian nationalism and that's the person i am. so most of his down side, would seem to me dish may be wrong -- is his domestic and political in nature. so i'm interested in knowing if

there's a thought experiment that can be had here about what is going through his head and what actions might he take that would have him basically say, you know, putin lost ukraine or lost crimea or lost his political saliency in russia. >> let's take a couple of questions. >> i'd just like to put on the table here what we're talking about is nothing short of thermonuclear world war iii with this kind of dangerous rhetoric, with obama calling this an invasion, when according to the '97 agreement with ukraine, russia can have up to 20,000 troops -- year you getting into a question in i'm getting nervous this is a speech. >> that's fine. >> it's not fine. it's a worry so please gift my

attention. >> my question to you is the u.s. and the european union backed a nazi coup of known nazi networks, followers of banderas, to overthrow a government and is now talking about setting up a confrontation with russia where obama launches economic sanctions -- >> i think you're still missing the question concept here. >> the question is, how are you guys justifying a joseph gerbil style prop began that that will lead to world war iii. >> i'll take the next question. >> this is based on the ukraine but goes the other side of the world. does anyone up there think that china is watching this closely and it will affect what china does vis-a-vis japan and south china sea? >> i'm -- identify yourself.

>> david woo. >> thank you. so why don't we come back to the panel with those three questions. and maybe we can start with you, fiona, and you can handle that mr. putin question. >> thanks. well, the mr. putin question and the second question are similar and interrelated, actually, you might not think it. on the first one, because we are indeed in a situation here of pretty sharply competing -- there's a certain depiction in the russian official media about what its happening and we have a very different depiction here. sometimes our depictions are all over the place as well, and i have to say pretty ill informed. i've been watching cnn, stuck in an airport for hours and watched so many bizarre maps of ukraine going by and heard ukraine's real name was -- no one is doing

their homework here. and it's so very easy to fall into thans of these very simplistic depictions which is what people thrive on. who wants to have a certain outcome under these kinds of circumstances. the narrative i was second -- our second unidentified questioner, a host of other outlets from the various -- i've been watching a lot of russian cable television recently, and it's a very striking anywhere sis here -- narrative here and we have to be careful about repeating that back. the same kind of extremist groups opressing in ukraine are here in the united states, are here all the way across europe and also in russia itself. putin right from the very beginning of his presidency has been extremely concerned about extremists. of all stripes. including russian nationalistic extremists. he said that specifically. one reason he pursued the war in

chechneya to a very bitter end and ongoing insurgency was to put down extremism, as he put it and he said in multiple speeches over and over again he is opposed to extremism of any form. he is playing to the nationalistic extremists at home in russia that could be very worried. he is extremely worried about the same kind of people who are being seen in groups on the streets in kiev and elsewhere. you can look in finland, norway, nether leans, uk, you can look in germany, anywhere and find right-wing extremist groups proposing their own form of nationallallism and infiltrating protests across the globe. doesn't matter where you look. late be honest. we all have our own extremist, and in fact in polling and certain work, before the seven to twelve percent of any population also any time, depending where there's a sense of crisis, will hold extreme views and be prepared to take

violent action. i grew up in the and you can have seen nationalisms of all stripes, been in battles and saw someone stabbed in front of me when i was 11 years old during the troubles in ireland so i'm saying here, i may sound emotional. this is something we see across the board everywhere. so you can put to rest this whole idea of propaganda. it's very easy to find extremists. the person who has been trying extremely hard before to keep things under control. he keeps people like one of russian's national extremist lite leaders under tight -- they keep them corralled in political formats and away from the streets. putin has seen on the square just outside the kremlin violent, interethnic, intercommunal violence by soccer high high

hooligans. there have been problems againstth neck check kneans. put -- chechneyaan. putin is very worried about this and obviously why ukraine is important. it's important for putin to show what can happen if someone doesn't have a very strong fist. that's why we are in the situation right now and that's ills why it could backfire, because if this narrative gets out of control, if people see something different on the streets of ukraine, they'll start asking at home, what is this? putin has to keep his nationalists, his extremeis on a tying leash. there could be blowback. the other blow back is the union. the president has been trying to build this expanded ewan union russia, cass stack stand, and bell a reduce, and violence can work against that, and opinion polls about 80% of russians are

against immigration and against migration, meaning people moving around the rest of the russian federation. the eurasian union is supposed to be lie think european union, open borders and free movement. if 50% of the russian population are not keen of this we get situations out of control and it doesn't bode well for the future of the union. if russia is going too far in the defense of russian spikers. what will the cossacks and russian speakers going to think about the impolice indication of the eurasian union. so all of these different narratives will work against each other. putin is -- this where is the difficulty becomes of the imbalance, keep control of the alliances. it's important for all the kind overneartives like we just heard today to take precedence in russia. otherwise our competing analysises are being pushed back with a very aggressive defense. so we have to understand here that putin faces just like the

rest of us, very complicated political situation at home and he has a big coalition that includes a lot of really nasty generallophobeike views. so he has the same difficulties our politicians have but more acutely. russian language is -- this is something that existed for a very long time. and putin knows what extremists can do to help bring down the soviet union, something which he deeply regrets, bring down the russians. they were a problem at the time the russian revolution, and again with the collapse of the soviet union and he is trying to head that off. >> the form of a plug i'll mention ones of our colleagues, hannah, has done a piece in taboo magazine today looking at these -- looking at the question of extremists and antisemitic narratives in ukraine and putting evidence to the question, and i would recommend it to you very highly. >> i'd like to -- just a couple

comments. the second questioner didn't identify himself but point of fact. under the agreement between ukraine and russia,ian -- russia is allowed to maintain black sea fleet and certain support units in crimean that was never in dispute. there was no indication at all about the new ukrainian government was going to challenge that. but yet the agreement did not allow the russian military to seize the airport, other points of entries. e set up checkpoints and occupy the peninsula in a military way. those go well beyond what the agreement permitted the russian military to do. just on the question of a nazi coup, that is -- again, that's the view one gets if one follows just russia today. certainly in the demonstrators there were far-right elements. so i think to tar the entire group with the label is just

simply wrong. if not insulting. we had -- actually hannah, our colleague, was there three weeks ago and said, you saw people from middle class, you saw families with kids, you saw a whole spectrum of ukraine out there which was protesting not just about the decision by mr. yanukovych in november not to proceed with the european union association agreement, but it has broadened over the course. it was demonstration against the corruption which was endem nick and has grown worse under mr. yanukovych. a protest against the thor tarean -- thaw tearianism. and there were elements we were are uncomfortable with. but you can't use that to tar the entire group. going back to the first question, how does mr. putin blow this? i think there are a -- right now i think he is in a fairly strong position and feeling fairly good. but i think there are couple of

ways he can blow this and begin to change the game. the referendum going to be conducted in crimea next week, i don't think there's any doubt what the occupy oklahoma -- outcome will be, whether it's fair or not is another question. how will russia respond in if they move to the next crima, that will be a mistake for mr. putin. the narrative they tried to construct in crimea, this is about protecting aggression, it gets overwhelmed be the fact it is what it is, naked land grab. that could be a mistake. if there's military action, a week ago people were -- six days ago, a certain nervousness with these russian maneuver north of even ukraine, with the russians going into eastern ukraine. certainly the pretext that mr. vladimir putin is it we'll protect our russian come patriots which is not just

russia citizens, it's basically russian citizens wherever they may be. military action either by design in eastern ukraine, or if something happens in crimea. if crimea declares itself independent and then they say to the ukrainian military you have to leave, and the ukrainian military says, no, we're going to stay on our bases, a military conflict. that could change the game in terms of how mr. putin is seen in ukraine and europe and perhaps back in russia. >> mike, this is confusing episode for the chinese. can you give us some sense how they might be viewing this? >> i'll try my best. a couple of points. first point is it's a very difficult but different problem in east asia in the sense that as you reverendded with the south china sea and the east championship sea, what is disputed is not territory anybody is living on, almost exclusively, and so that makes it a much different kind of problem. not necessarily easier or harder

but different. so, that makes me feel a wee bit better in the sense there's not a direct linkage necessarily what might happen in crimea we may not be able to undo and what the chinese may be tempted to consider doing in the east and south china sea. point one. point number two, when you look at both these contacts together it's a reason i would you have to be very careful about your military rhetoric and signaling, not just what you actually do by way of operations but what you even talk about threatening. i don't want threats that aren't credible in either place, and so i think this is a reason not to send too many u.s. navy ship others into the black sea,-a-they have anything to do with the resolution of the problem. it's not time to mobilize rapid reaction force, unless our allies in the baltics or poleland get nervous they wouldn't mind a few more people from other countries coming to visit but we don't have to call

that a rapid reaction force under those circumstances inch this case it underscores the importance of being precise on what you're prepared to use military force for and what you're not prepared to use it for, and you shouldn't let the light get too blurred. then finely in some contrast to my second point, think you have to make people pay a real prize even for things you're not prepared to go to war for if there's no basis in international law or decency in what they just did. and so if russia annexes crimea in a week there has to be a lasting pain, and i personally would not consider it to be a major international crisis that necessarily makes me sleep less well but russia has to suffer lasting consequences, especially putin and his inner circle, and i'd like to see us begin the conversation about what set of sanctions would be appropriate under those circumstances. certainly seizing the assets of or at least freezing them of the

inner circle is a good place to start. certainly prevents reese saturday for this crop of imperialists from the kind of movement into western europe and the united states asia reasonable place to start. this would be an action that would have to be undone at some level and we would have to do things differently, permanently, until it was undone and i can't imagine russia belonging in the g8 after that action. some of these things maybe it's better not of the have secretary kerry or president obama say them because it gets put a put more riled up and we know how he likes to act. think we need to have these conversations at a more general level. has to be a last, just like a lasting price if tomorrow we woke up and china had taken two of the islands overnight and had no intention of leaving. we don't have to do an amphibious assault to push them off but there has to be lasting price. >> just ask you -- i think asking the way the united states has an obligation to improcess

improcess the price and goes back to the budapest memorandum of security assurances. ukraine halved 1900 nuclear warheads targeted at the united states, and part of the price we agreed to play in 1994 to get ukraine to say we'll transfer the weapons back to russia for elimination, we said we'll give you security assurances along with the russians and british, commitment to your territorial integrity, sovereignty, independence no use of force against you, whole string of now i would argue russia has vie violated. that's an important choice of words. assurances. not guarantees. we give guarantees to nato allies, japan, south korea, and that has a military connotation and we're clear when the talked to the ukraines and said there's a reason we use this word assurances north, guarantees. we're not prepared to give you a

ticket or chit that may not have a number but has military. we will take an interest in your state and if these commitments become threatened we are prepared to react and the things we're talking about. political, diplomatic, economic measures to punish russia are appropriate in terms of us fulfilling our commitment to the ukrainians in 1994 and i argue the way to do it is to use political lever and financial and economic assistance with the international monetary found help ukraine succeed. in a way the best way to get revenge on what has happened with russia last week is three or four years from now you look at ukraine, there's a country, their economy is turning around, they are growing, stable democratic institutions, looking more like poleland. that's the way to stick a thumb vladimir putin's eye. >> let's go back to questions. we have a lot.

dr. kagan there. >> debra kagan. senior state department fellow. just a quick question. there's a pattern here of bad behavior. muldova, georgia, now this. i think that a lot of the reluctance of others in the west to -- short of stripping russia from the g8 -- is energy. have you given consideration to something that i think a lot of us have been thinking about and i heard bill richardson say, what if the united states proffererred to start selling natural gas to europe to ukraine to poland to countries who have higher than a 40% publish germany the highest but higher than 40% of dependence on russia for that. what is your reaction to having

the administration offer to do that. there are no laws against it. only laws against oil experts from the '70s but not natural gas. to start doing that in order to put not just ukraine more at ease but break the russian hold on a number of west europeans who are reluctant to join these more fervent economic sanctions because they know that russia has them over the barrel, no pun intended. >> i would ask that person i took the microphone from. >> i'm from -- could you elaborate this argument that crimea and this invasion of the russia to crimea is not really connected to ukraine cries but it's -- ukraine crisis but it's much more beyond and it

connected more to the strategic amibition of putin in the black sea region and in the mediterranean, and in this time took again the advantage of the crisis in ukraine the same way he took it in georgia when at that time again it was a good opportunity for him to take a -- to improve his strategic position regarding central asia and the whole eurasian region, and what you think in this very, again, very realistic approach, there is any kind of option for deal? i mean, crimea to put in. >> let's go to the back. all the way to the back. give the interns some exercise. >> thank you. jim johnson. i'd like to follow up on what fiona was talking about, the

role of putin as are bitter -- arbiter in a potentially less authoritarian political situation that american media points to. there's a growing thought that put a put is a quote-unquote weak dictator. at we have been speaking here russian troops by interfax and ukrainian tv have physically stormed a ukrainian base, entered the premiseses and assault vehicles driven up to the base. the reason i raise this to you there's some thought here about how to deal with a russian regime that may not be in fact a solitary decisionmaker where in fact local events on the ground and other interest groups around putin may in fact be trying to control circumstances as much as the man himself. thank you. >> steve, let's start with you. can you address that energy? >> i think this is a great idea on terms of american experting.

there are reconfigure racing of terminals being built eight years ago to receive lng, now being converted to export lng, which we can do. and i think there's a good arguement to be made, is it time for the united states to reconsider whether we have this ban on exports of crews -- crude oil, whether to lift that. this is a very good way to push back against the russians. this is not hostile. this it is not provocative. this is just the united states making smart economic decisions to allow to us export energy to global markets so that we can draw more revenue in the united states and if that just happens to push the prices of energy down, oil goes down and gas problem is a bit less revenue, that's the way the market works. so i think this would be something worth doing. and it may be also that this is something that may be happening in any case in term of europe which get as quartser of its

natural gas from russia. they have already been the victims twice of disputes between ukraine and russia. in 2006 and then again in 2009, when the contract expired, russia basically, after negotiating for several days, said we have no contract so we're turning the gas off to ukraine. the only gas we're pumping into the pipe is gas 0 to go to europe. it's all the same pipe and the fun funny thing happened when the russians did that, no gas came to europe, so the only way the russians could cut ukraine off was to stop exporting goose europe. twice that happened and that has caused europe to think in a more serious way about energy security and russia's reliability as a supplier of energy, and there is a potential right now, because still russia pumps upon probably between 60 and 70% of the gas to europe goes through ukraine.

that's card the ukrainians have not played because that gets very, very complicate knowledge built if this thing spins out of control, europe -- there's a chance there could be one more gas cutoff and that would only encourage european countries to think further about alternate sources. and that's run reason why the russians have to be careful because when gas problems produce gas in western siberia, that gas can only to europe. they don't have the connector pipelines into asia so they export the gas or sit on it. >> fiona, how do you feel about the -- >> can i make a comment on the energy in this is something we're hearing a lot of. this is a long game and not something we can do by next week, next month, or next year, and put put is also prepared to press ahead with the laying of the south stream pipeline across the black sea.

which is also going to be complimenting the pipeline already across the baltic sea, the north stream pipeline into germany. so removes ukraine has a transit route. one aspect of this, all kinds of the things come into play. the russians sit on the gas. we're concerned about global warming and when the russians can't sell their gas they don't have enough means to capture its for export, it floats into the atmosphere so at much of 60bcm of glass across siberia. the energy tool is not so simple to effect, and i agree over the longer term -- across the medium term, not an option that will turn vladimir putin around anytime soon because actual expert volumes have gone up in europe in spite of the mild weather, norway has not hads the capacity to basically substitute, and in fact what has

been coming is cole from wyoming and -- is being ships to germany and elsewhere. so we are playing in this game already but it's a long game we're in for. we can make the moves but in the short to medium term it's still a question of russian dominance and we have to start working on this. we're not going change the tide that way. that gets into the questions as well about the sort of strategic -- another larger issues. putin is basically moving while he can. he may kind of look weak over the longer term, may have difficulties, not being completely in charge, over longer term we might be able to fact the calculation on energy but right now he is in a position of relative strength geostrategically because of weakness of other and the chaos elsewhere. he benefits from the fact that russia may be a direct democracy in his popular rating, the elections but it's in the the robust democracy. president obama can't basically

move for people biting at his ankles and clobbering him over the head. he can't be a leader because at every front everybody is basically complaining about his activity. the putin doesn't have to suffer from that. he doesn't have people calling him an idiot, left, right and center, or members of congress blocking his able to do something only sanctions or pushing him to do something and take action. he doesn't have his media hounding him. his media is a highly orchestrated settings, throwing him softball questions and praising him for his accomplishments. so, he is actually right now able to move forward in a more decisive fashion. it is however true that what happens on the ground is often beyond the purview of putin. he is being very opportunistic here. he is seeing the weakness ofs could acting like he did with syria over the chemical weapons and there's vested interests on

the grounded. people who make their money out of these kinds situations, elite members of the military who might think they're better off of being on the payroll of russia instead of ukraine. and the 1990s conflicts through to georgia, it was highly apparent there were local actors. in 1990s goas -- georgia and ukraine and various figures basically exposed the opportunity of -- we can say that is definitely happening again. we many respects in the 190s, in yugoslavia, at the airport -- remember this very well -- one of the local commanders thought here's an opportunity i'm going to try to do something in the middle of the balkans conflict

and then may be some greater opportunity here. so we have to be careful in interpreting events. and remember that there is kind lots of crises that happen from the ground up but what happened in the case of ukraine, and the difference is that putin has been better position to take advantage of the crisis than we have. >> so let's go back for one more round from the audience. gentleman on the aisle. >> thank you. some questions. first, in terms of legitimacy of the ukrainian authority, i'm wondering, do you think that -- agreement a little longer, and on this issue what kind of compromise are you expecting from other players? and finally, there is -- can be

such a compromise, what will the crisis affect future events, like the eu, ukrainian and may election. >> i'm having trouble seeing beyond the lights. maybe you can pick a couple of people in the back. thank you. >> ricardo, visiting here. >> good choice. >> i have a question for whole panel. i was wondering where we can expand the discussion to include also the role of russia in issues of international concerns outside europe, and so what is in your opinion -- what impact is this crisis in your opinion going to have on russia's calculus and its interests to cooperate with the west on, for

instance, afghanistan or to a certain extent even syria, but above all, iran. thank you. >> so, kathy, one more person in the back. >> my name is contes a from "the new york times." i'd like to ask the panelists how realistic is the idea of having a confederation that should include russia, what are the objectives of dismiss should this end the competition with russia? >> the february 21 question. on february 21, after three very violent days in kiev, there was an agreement reached between yanukovych, the former president, and the three opposition leaders, the three main opposition leaders, and it

was witnessed -- well, actually, you have the german, polish, and french foreign ministers there workingover night to en -- working overnight to encourage this and the ambassador from the russian federation as well. there was a draft done initialed by yanukovych and the three opposition leaders, and then the four others, the german, french, and polish foreign ministers and the ambassador initialed the draft as witnesses. there was then the period of consultation. they came back and they finalized the document to sign. at that opinion it's interesting. the -- the ambassador did not stay to witness the actual signature so when you see the final document where it should have had eight signatures there are only seven. i understand this came after the consulted with moscow and russia said, don't associate yourself with that agreement. what then happened -- there's a question, would that agreement

have been able to go forward? it was pretty clear -- three major elements. called for the creation of national unity government, called for revising the constitution to go back to the 2004 version which had more of a balance of power between the president on one hand and the prime minister and the parliament on the other, and it called for moving up the presidential elections which were going to be in probably march of next year, up to sometime this fall, between september and december. the last point was very hard for them. the view was, wait a minute, yanukovych, ran the government. the previous day, 75 -- well, the numbers -- 70 demonstrators are killed. many by snipers, and the view was we don't see this guy being in office for one more day, let alone until the fall. so i'm not sure whether that agreement would have been --

would have withstood the challenge from the demonstrate years but we never dot to that point because m-yanukovych, signed the statement, walked out, packed up all the valuables he could take and fled. the next day in a short filmed interview where he was asserting he was still the president, then disappeared for six days until he gave a press conference last week in russia, and as far as i know he has not been seen since then. so, the agreement kind of fell apart because president yanukovych abdicated, and you really had no executive authority. at that opinion, yanukovych has already accepted the resignation of his prime minister, who i believe had then gone to moscow. took the steps of appointing the

speaker as the acting president. i think this is all consistent with the parliamentary rules in ukraine, but i think it does underscore the importance of having the presidential election in may and having it be free and fair in way that gives the ukraines confidence we have a elected leader who will have a degree of legitimacy that the current acting president does not. so getting to that point is very important. >> fiona, the eurasian union. how is this affecting the prospect of that. >> if that was the question. the question about the confederation with russia. i wasn't entirely clear. there's two different ways that question could be answered. unless we gate clarification. there is discussion about turning ukraine into a federation that is happening right now, being pushed from russia and some other -- as one

solution to the problem. so crimea and many other regions, including parts of eastern ukraine, get the maximal autonomy which dilutes the influence of kiev, and the state of ukraine and that would increase in mayne many respects the potential influence of russia. that's something that actually in ukraine has been rather unpopular as an idea for a very long time, since then 1990s. and precisely because there is some divergence of view in regions, and opinion polls that show that. there's no such thing as the average ukrainian, and even within region there's no obvious viewpoint. ukraine like any other country -- like the united states itself has divergence, regional differentiations and a different pulse of red-blue inside of each different state or substate entity. so, that is actually very difficult issue. the eurasian union, in our discussion now, reached a

different level. this is again the customs union idea of bringing ukraine into the russian customs union. the idea that was initially put forward on the part of the russians, negotiation between the eurasian union and the european union to have higher level trade negotiations. some variation of that is now back on the table. there are talks including coming out to the eu there has to be away of diffusing these tension officers come petting trade blocs. the idea of the european union association agreements, the transatlantic trade partner ship, transpacific partnership, the idea that the wto has ground to a halt and although trade negotiations are going nowhere and that maybe a regional whether bloc could find -- more likely to lead to confrontation

and to more confusion. so now there's a discussion going on behind the scenes about how can we get across that? how can we find different ways of discussing this and finding out what is the main construct by the russians and others by the creation of these blocs. it is entirely possible that there could be some more discussion about eurasian union, dnr european union and having a very pragmatic discussion about what is the real roots of this sort of conflict and the confrontation over this. asked about impact further afield and i think might in particular -- talk about this on afghanistan -- going to be great deal of complication on this syria and iran front in this, because we saw the blocking of the un envoys into crimea over the last few days. been discussions about having a u.n. monitoring mission of some

over -- also the case in georgia. at the russians don't look very happy about that and yet the discussions about syria and iran are taking place in the u.n. framework and we need to have russia onboard in the u.n. context, given the u.n. security council role, for the syrian and iranian negotiations, discussions of the peace, at least what -- peace process of the syrian civil war and negotiatings with iran over the nuclear program. so a very difficult item. >> very important question. a lot of us even on this panel but certainly in the broader political debate were talking about how to punish putin and make pay a price and we need to calibrate it. this custodies to the strategic core of why they need to be calibrated responses, and for for example, if putin annexes the crimea after a referendum in

a couple of weeks, then i think we need to have the kind of targeted sanctions i mentioned but not yet talk about preventings russian companies from having access to western banks or having russian firm firms prevented from having access to western oil markets and leaving aside our allies cannot survive without the russian fuel. we also need to keep a certain degree of restraints in our own reaction because there oar stakes here. if putin decides to take our firm but limited response and escalate further, we may wind up in an uglier place, and then you have to have backup options and other core equities made be affected. the kind of proposals i mentioned, going after putin and his top officials and cronies with targeted sanctions on their travel and finances, has the advantage of being fairly hard against them and limited in a broad ever strategic sense partly for the reasons you mentioned and partly because as

bad as this crisis has been and ascertain it would be to see an annexation of crima, even under the auspices proposed at least there hasn't been widespread violence and the limits on russian military operations have been fairly geographically specific so far. i think we do need to continue to incentivize putin not to ask late. that miss overall response to you question. >> with that, and i -- if you're keeping score of the moderator, we have hit the time exactly. >> also looking good today. so three for three. >> i think i did very well here and the rest of the panel also did well. we have an excellent panel so please join me in thanking the panelists. [applause] [inaudible conversations]

>> on the next "washington journal" ralph reed looks at religion in politics and followed by u.s.a. today editor paul singer and the discussion of the effectiveness of the office of congressional ethics and then julia nuin talks about if privacy is a right or a luxury goods. washington journal every morning at 7:00 a.m. eastern on c-span. >> saturday, we'll have live coverage of this year's final day of the conservative political action conference, or cpac, scheduled speakers include newt gingrich, ann coulter and former alaska governor sarah palin. watch them begin at 12:40 p.m. eastern on c-span and let us know what you think at

facebook.com/c-span or tweet us with the hash tag c-span chat. >> this week on newsmakers, joint economic committee chair kevin brady looks at economic issues facing congress. he addresses unemployment, the president's budget released this week, and tax code overhaul plans such as one from way and means committee chair dave camp. newsmakers sunday at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> c-span2 providing live coverage of the u.s. senate floor proceed examination key public policy events and every weekend book tv. now for 15 years the only television network devoted to nonfiction books and authors. c-span2, created by the cable tv industry, and funded by your local cable or satellite provider. watch us in hd, like us on facebook, and follow us on twister. >> tonight, on c-span2 a u.s. supreme court oral argument dealing with the limits on the

court's ban against executing the intellectually disabled, followed by a political discussion on the influence of and are its history with the united states. then experts discuss russia's intervention in ukraine and possible next steps for the united states. >> this week the supreme court heard oral argument in hall v. florida, case testing the limits on the court's ban against executing the intellectually disabled. the issue rests on how states define intellectual disability when uses iq tests. florida has a cutoff of 70 for determining intellectual capable. the counter-will dtc if the cutoff is unconstitutional in 2008 the supreme court ruled -- 2002 the court ruled that execute those who are mentally retarded is cruel and unusual punish. they would court decided to leave it to the states to determine the criteria for

meeting the standard. this is an hour. >> argument this morning in case 12, hall versus florida. mr. waxman. >> mr. chief justice and may it please the court in atkins vs. virginia this court held the constitution bars executing persons with mental retaddation, persons with significantly subaverage intellectual functionen concurrent with deficitses and adaptive behavior with an onset before the age of 18. because of the standard error of measurement that is inherent in iq tests, it is universally accepted that persons with obtained scores of 71 to 75 can and often do have mental retardation when those three prongs are met. the stackal error -- statistical

error of measurement. >> 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's the rule we announced today? we said 70 is not okay but 75 would be? i'm not quite sure. how use you announce the rule? >> let me first take some issue issue with all due respect, your characterization of atkins of. what those court said in atkins is not to leave it to the state to establish the standards for the clinical condition of enemy retardation, what you said, quoting ford is, we leave it to the states to -- we leave to the states the task of developing appropriate ways to enforce the constitutional restriction that we announced. the rule that we advocate is --

and the only real question presented in this case -- is just this. if a state conditions the opportunity to demonstrate mental retardation on obtained iq test scores, it cannot ignore the measurement error that is inherent in those scores. it is a statistical feature of the test instrument itself. >> but we didn't base our decision in atkins upon a 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 had adopted, and a large number of states had adopted 70 as the criteria. the cite tieran is what do 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 looked to what the states did. now, what has changed in what the states do? anything? >> justice scalia, i have -- i would like to respond with four point and is hope desperately i'll remember. the first of all, what this court said was -- this court, number one, it made clear as it is reiterated in miller versus alabama and graham vs. florida that while a consensus or perceived consensus month the states i important, ultimate test is this court's decision what the eight amendment does or does not allow. in page 318 of the opinion in atkins, theirs course, after citing in footsnote three the virtually identical clinical

conditions of retardation and point ought that 70 to 75 is the established caughtoff for mental retardation, this court said the following: quote, clinical definitions of enemy retardation require -- cited the three tests -- because of their impairments, mentally retard persons by definition -- that is, by the clinical definition -- have diminished capacities to understand -- and they recited all the disables that made the imposition of the death penalty for persons with that clinical condition unconstitutional. now, as to what the states did, the court did refer to, i believe, 18 state statutes. not a single one of those of 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 this, the fdm. 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 an obtained iq -- >> and established by whom? >> the standard error of measurement, which is established by the creator ofs of the test -- it's not something that clip niksch -- clinicianses dream up. it's not a decided by the american kick association or aaidd. it is inherent in the test and all clinicianses are told, both professional associations make clear, because it is simply a statistical fact, it must be taken into account such that an

obtained iq test score is actually the result of a test score that accounts for the standard -- >> what purpose do they establish these scores? for the purpose of determining who is sew incapable of controlling his actions he shouldn't be stuck to the death system is that what they're looking for when they establish 70 to 75? what are they looking for? >> they're looking for -- intelligence tests supply a -- they weren't created for the definition of clinical definition of mental retardation. they were created as -- in order 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 do they pick -- they used to pick 70. now they pick between 70 and 75

as the upper limit. upper limit from what? i assume it is for people who would profit from medical treatment. isn't senate. >> there are many reasons why a person's iq, a person's intelligence -- intellectual functioning may be important for a whole variety of reasons, medical, psychological, developmental, and as a component of the clinical condition of mental retardation, the eighth amendment. now, what intellectual -- >> can we just talk -- you referred to as the sem. that is not limited to iq of 70-75. that's of course the -- >> the concept, the statistical concept of a standard error of measurement applies to all forms of test -- >> has nothing to do with the death penalty -- i'm sure that

when the principle was -- he also recognized essentially the -- >> i'd like to go back to another quo. in your view does the constitution permit a state to establish any hard cutoff, let's say, 76? can it do that? >> i thick it -- think it can because the standard testify mission of prong one, intellectual functioning, is two or more standard deviations below the mean. >> can you do -- i'm sorry. >> let me just explain. because if a state is using an obtained iq test score as a proxy for true intellectual function, it has to take into account the standard error of measurement and, therefore, states like mississippi and oklahoma that in fact establish

a cutoff of 75, in our view is constitutional as this court announced the class of individuals in atkins -- >> so that's saying -- i'm sorry -- when you say the standard error of measurement, you're talking about a degree of confidence. right? >> correct. >> your submission is that you need to have a 95% degree of confidence. >> well, our -- >> that's what the five gives you or the number is wrong? >> well, the -- on a test that is normed at 100, 70 is two standard deviations below the mean. if there is a -- the standard error ofmer u measurement -- this is not my submission. this is the universal -- >> i'm trying to figure out what it means. >> what its means is that swan, for example, with an obtained iq of test score of 71, as mr. hall received, has a 95% probability that his score will be between

76 -- >> why is 95% -- where does that come from? why are you picking 95% in why isn't it 90%? >> i'm not doing any picking. >> why did the organizations pick 95%? >> it's been two standard error two sems, which is 95%, for decades and decades and this court recognized that consensus, that universal consensus in footnote 5 in its opinion. >> party has the burden of persuasion on the issue of iq? and what is the standard? >> varies from state to state -- >> what does the eight amendment right? does the eight independent amendment per mate state to assign to a defendant the burden or persuasion on iq? iq above 75, can they assign that burden of -- above 70?

can 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, yes, so you see where i'm going. we believe it is entirely constitutional for the state to assign the burden of proving mental retardation on the defendant, and insofar as as the clinical definition recognized by the court in atkins is a three-part conjunctive test, i think it's fire say that a logical consequence of that is that, as to every component, the burden may constitutionally be placed on the defendant. now, the board with respect to prong one is the burden of proving significantly subaverage intellectual functioning, of which a true iq score is a piece

of evidence. i don't think -- >> why can't the state -- you told me the state can establish a hard cutoff and you told me that a state can assign a burden to the defendant in the case of someone who scores 75, is it not the case there's roughly -- there's no more than a 2.5% chance that person's real iq is 70? so how does that square with any burden of proof that might be -- any standard of proof that might be assigned on that part. i don't new understand. >> let me see if can explain this, this ammann who has a 71. >> i understand. >> as though general issue, let me 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, that your question suggests and the state's suggestion suggests that diagnosing mental retardation, which is the constitutional inquiry, is just a inquiry into a person's, quote, true iq score, but true iq scores themselves are a statistical concept. the score you've get on a hypothetical test that had no measurement error. and this is -- true iq is not the same as intellectual function, and iq tests themselves, however perfect they may be, don't perfectly capture a person's intellectual function. >> i understand that argue. that doesn't seem to be consistent with your point that a state can establish a hard cutoff of 76.

on the iq test. that's the end of the inquiry. the person does not qualify under atkins. >> so what i'm -- this would not be a standard i would endorse but i believe that in light of the consensus tests 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 point, the converse point, it seems to me, is not true, which is 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 just may point out that in this case, there were six experts who fully examined mr. hall, or sump sized a full examination of

mr. hall. they were cognizant of the iq test scores he received, and each one of them opined, without hesitation, that he had mental retardation, functional mental retardation -- >> the district court defineed that he did not show adaptive behavior. if that was so, all of those experts you referred to were speaking retrospectively. there was no evidence of what he defendant's current condition was. that was -- >> that is correct, justice ginsburg. the state trial court ruled it would not accept evidence as to prongs to good and three but it

did allow mr. hall's lawyers to make a proper pursuant to the state -- up to the state's agreement that there could be a proper in some expeditious manner. one of the grounds we appealed to the florida supreme court on in addition to the hard cutoff of 70, was the fact that in fact an expeditious proffer did not permit toss put on all our evidence about prongs two and three, and the florida supreme court -- page 125 of the joint appendix -- said we don't need to consider that question because we uphold the rule in cherry. >> but there's nothing that limited you to the retrospective proof, and the simple question,

how did -- one expert was sayingings i didn't test for that. i don't know why i didn't do it. and that -- >> you're correct. part of the expedition profferer was limited to the testimony of two of -- i believe actually only one of the experts who examined him and did the adaptive testing function, and that expert did say that he didn't test in prison. now, as both -- there is, again, universal professional consensus that adaptive functioning is tested by adaptive functioning in the real world, not adaptive functioning that occurs after 35 years on death row. and in fact, we also know toclub clinical certainty that because

mental retardation is a condition that is both developmental and not transient -- that is there has to be an demonstrated onset during the developmental period, but one doesn't emerge from the condition of mental retardation, unlike, for example, mental illness. >> you talk about the condition of mental disability that is involved here. i want to good back to something you said in response to justice scalia. the question was along 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. they can all focus on the same subject. does it have any meaning other than that? that 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. it is, as this court recognized, a clinical condition, unlike, for example, insanity or competence, clinical -- >> there is any evidence that society in general gives substantial deference to the psychiatric profession in this respect? there are any studies on that? anybody to look to see if that's true or not true? >> i'm actually not aware of anything that suggests that one -- 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 determinative for things other than the death penalty. i uses the existence of the condition for educational remediation, vocational rehabilitation, and everything, and then in those instances, as

we opinion out in our brief, the florida -- florida does apply the standard error of measurement -- we. >> we have later in the week an argument bottom economic theories and it's a little different because in that case the cower dr. it's the court's own juris prudence and we have not said it's up to the state do you think we defer to psychiatrists anymore or any less than we do? >> i think it has to be much, much more. as the court pointed out, this is a clinical condition. it's a condition that can only be appropriately diagnosed by professionals -- >> seems this apa is the same organization that once said that homosexuality was a mental disability and now says it's perfectly normal. changing their minds.

>> justice school scalia. >> changes their mind w whether 7 or 075 is the new test for mental retardation. >> the laster is not true. the standard -- two things that are not in dispute in this case. we're only here talking about prong one, which is significantly subaverage 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 that the first element significantly subaverage intellectual functioning, is defined as a personal whose intellectual function is two or more standard deviations below the mean intellectual functioning of contemporary -- >> mr. -- waxman, can i take you back to a question that the chief justice asked? the chief justice said, where does this sem come from and it

is the test major's determination that this is the margin of error that gives you a 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 center young say it either way. you can say, gosh, we're putting somebody to death, we should have 100% confidence level. or you can say, as i take it justice alito point was, the burden of proof is on the defendant here anyway so in 95% confidence level seems awfully high. we ratchet it down to 80%. why for this purpose do we have to good with the testmaker's determination that five is what gives you a 95% confidence level. ... 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. ..

>> suffice it to save most of health policy really is not health policy at all but he said chile budget policy. so congress ducks on many of

the big issues and ends up and up with in the parlance of washington maybe it is an extension may be a stopgap but the fact is it ducks the big issues repeated the especially on medicare we have 10,000 people eligible for medicare every day and there is a beat -- a very real cost without. -- with that so now to try to find a way beyond the taxation of budget it would be one thing if it was the sound budget policy but we don't get at the structural issues but that move beyond so lurch from one calamity to another to come up with sensible budget policy. st an ho.

muchank you very

[inaudible conversations] thank you so much. thank you for everything you have done over the years. i am the managing editor of "the washington report on middle eastern affairs," and i will give you a slightly different picture about the united states congress. our magazine has been covering ro-ish-year-old -- is -- pro-israel pacs since 1986. i immediately tell them that aipac does not make campaign contributions. i think it is important not to accuse a pack of doing something it can truthfully deny because that makes it too easy for aipac

to deflect the argument. pacs is not to say that aic has nothing to do with campaign contributions. published a we paper written by our executive editor, there were about 128 pro israel pacs. now there are about 30. according to the center for politics, 31 pro apacsl pca contingent -- contribute it millions of dollars in 2012. while this year's is still a work in project -- in progress. gaveu can see, these pacs almost 60% of their

contributions to democratic candidates in 2012. it is not the case that only republicans are eager to do israel's bidding. -israel gave to democrats. these pacs have interesting characteristics. the filings, with the ftc, they all list themselves as unaffiliated. have no problem identifying their affiliation. under thepacs national association of realtors all list their industry as real estate agents, and each of the seven includes association of realtors in its name. thell show you the names of 31 pro israel pacs that open secrets has listed. what is interesting is all but

four of them have innocuous misleading names. those exceptions are the world alliance for israel, the republican jewish coalition, the national jewish democratic council, and allies for israel. even the means is that most conscientious voter who knows the name of every contributor to a candidate's campaign might not know that the candidate is receiving money from paccs that advance the introduced -- the interest of a foreign government. another characteristic of pro israel pacs if they prefer to give to reliable incumbents rather than challengers, recapping -- regardless of the party religion. they also give priority to members of congressional committees responsible for issues of concern to israel, such as foreign affairs, armed forces, or touch it. -- or budget. they like to extend their

largess two leaders. contributions used to be fair and middling, but his have now increased to the point where now he is receiving more than $250,000. collectsis when a pac checks and hands them to a favorite candidate. this way the candidate has no doubt about the source of the pac isution, but the not regard to disclose them. bundling began to become popular around 1994 when talk of campaign finance reform was in the air. it is a way to minimize the public impact of pac contributions. most additional pro-israel pacs use bundling. according to open secrets, the

pro israel norpac, the number five contributor to a campaign, if him $3804. individuals associated with that than $58,000.more 904, so0 ived pac contributions are just a tip of the iceberg. what is most striking about pattern ofis the giving. once you have read the filings it is completely predictable who the other ones will beginning to, and i can attest to this because i've gone through these pages of fec reports. locksteps operate in to sucan