to get into you at th -- peopled in prison programs generally have a lot few disciplinary actions when they are. >> can any of the panelists discussed the need to get these mens rea requirement before we prosecute people? >> the vast majority of the statutes include a specific standard. there is a role for the careful use of some strict liability consensus when they are highly regulated industries for health and safety or environmental protection. there are occasions when we delete the statutes that provide the liability are appropriate. they just have to be very judiciously used.

.. to be very ju disdiciously used. >> now mr. conyers. >> thank you, mr. chairman, and i welcome the contributions of the witnesses. i can't emphasize too much how important this task force is in the judiciary committee, and i'm so glad that this discussion is taking place. judge saris, the commissions act demonstrates that the 57,000 inmates eligible for the drugs minus 2 amendment are of color, black or hispanic. would you agree that denying

retroactivity would disproportionately impact minorities who have already been prosecuted and sentenced at disproportionate rates? >> let me start off by saying we haven't made our decision yet. we vote -- is that okay? we vote next week, actually next friday. back in d.c., 1:00, we vote. so we have not yet made a decision on retroactivity. we have held extensive hearings, had innumerable letters from law enforcement to the courts, from various stakeholder groups, religious groups. we've heard from everyone and we will make that decision next week. what i will say mandatory penalties and our drug scheme overall have had a significant impact on racial and ethnic minority communities, and more than 70% of offenders subject to

mandatory minimums are minorities, black and hispanic. one of the reasons for that is, especially black offenders, have qualified for the safety valve less so that the mandatory minimums have disproportionately affected minority populations. >> thank you so much. could i ask for the opinions of judge keeley and david patton on the same issue, please? thank you. >> thank you, chairman conyers. i mean, ranking member conyers. i wanted to remind everyone that our committee, the criminal law committee, did have authority from the judicial conference to make a decision regarding retroactivity, and at our june

meeting of the criminal law committee, we voted by a large majority in favor of making the drugs minus 2 amendment retroactive. >> thank you. mr. patton, would you comment on th this? >> i think it's safe to say that offenders would strongly encourage the commission to make -- and for congress to make any changes retroactive. it really does not serve the interest of justice for the amount of time somebody serves to just depend on the fortuity of when the law goes into place. if it's an unjust sentence, it's unjust for the people serving the time now in addition to people who will be sentenced tomorrow. and it would, i think, greatly

help to emiliorate the crimes we see in the system. >> my next question is to judge saris, judge keeley and judge patton. here it is. congress recommended mandatory minimums to be imposed against drug kingpins, but as we found out, it's often low-level offende offenders, often people of color who receive it. does this comport with your experience? >> i'm just going to jump in because congress asked us a few years ago to do a study on exactly this issue when we

issued our report in 2011. and at least as of that time, we studied it, and, in fact, the mandatory minimums, as we said, applied very broadly not just to serious and major drug offenders, but they were also applying to street-level dealers, couriers and mules. so, for example -- now, many of those get safety valve relief, but they're getting hit at very high levels with convictions of statutes carrying mandatory minimum, and particularly the street-level dealers are, in the end, subject to them. >> thank you. could i finish, mr. chairman, by asking judge keeley to weigh in on this, please? >> as you know, i speak for the conference, and the conference for 60 years has opposed mandatory minimums, and one of the basic reasons we've opposed it is because of the disproportionality and

sentencing that results by treating similarly offenders who actually may pose very different risks to society. and so to the extent that the statistics demonstrate that that disproportionality affects the african-american and the hispanic community more in a more disparate minimums are viewing a similar -- apoffender who isn't similar in a very similar way instead of individually, which is the way sentencing ought to result. >> david patton, would you give us your opinion? >> absolutely. to your initial point about the fact that mandatory minimums sweep in people that they were not recommendingly inte lyorigi think the evidence is in, that is absolutely the case.

congress intended for mandatory minimums to apply for managers and organize ares of large scale drugs organizations and instead they have swept in much lower level offender. >> thank you all very much. >> at this time i recognize the gentleman from new york. >> thank you, mr. chairman. let me first just thank the distinguished panel for your prepares here today and your tremendous service to your country. let me start with mr. patton. it seems that there are four primary actors in the criminal justice system. you have the prosecution, the defense, the presiding judge and the jury. but if you have a trial participation rate i believe the number was 2.7%, it seems that

the course of the criminal prosecution as you point out in your testimony is largely determined by only one of those four actors, the prosecution. to the exclusion of the other four contemplated to bring about a just result in our constitutional system. meaning presiding judge largely excluded, certainly the jury largely exshrecludedexcluded. the opportunity to mount a meaningful defense largely excluded. so the system is out of balance in my view. what would be your recommendations in terms of how to restore some balance to the system in a manner that allows for meaningful engagement and participation by all of the actors in the criminal justice system so we can have a better shot at reaching the most just result? >> i think the committee is probably growing tired of

hearing it, but the answer is straightforward in one respect and that is to eliminate mandatory minimums. prosecutors will always have a great deal of authority, but when they control the back he said, that is an unhealthy state of affairs. most prosecutors are trying to do the right thing. but we are a nation of laws, not of men. we are weary of investing too much power in untransparent decision making. and that's what happens in the plea bargaining process. when a judge imposes the record, it's on the record, there is a transcript, congress are decide whether or not changes need to be made. but charging decisions about whether or not to stack multiple 924 drk cs or file an 851 that

which poe exponentially increases someone see sentence, those are done untransparently. >> thank you for your service and i want to follow up on the incentives to move forward.done. >> thank you for your service and i want to follow up on the incentives to move forward. not withstanding the direction given by the attorney general. in the con tetext of a u.s. attorney receiving a performance evaluation, line attorney, is it normal practice that that performance evaluation is based in part on their conviction rate? >> f >> no. absolutely not. >> so somehow prosecutorial advancement determined? >> good endepends on the indivi but it's about judgment, compliance with our discovery

obligations and legal requirement to do -- to roy what is material and exculpatory to the defense. i've never in my 20 years as a federal prosecutor been asked about a conviction rate. i don't even know what it is. and i don't keep track of that for the lawyers in my office. our paramount objective is to do justice and would hee evaluate people on their consistency in the pursuit of that goal. >> so how do you measure judgment and discretion and ability to do justice? >> it's hard to do that impeericly or statistically. i don't think justice is always reflected in a conviction rate or the number of cases handled. it's really a product of a case by case evaluation of whether or not someone is fair, has an innate sense of justice and is achieving outcomes that are fair and just. and that's what our people are trying to do every day. >> so some have articulated a concern based on performance

evaluations being largely measured by conviction rate and/or enhance the length of sentencing. from your perspective, that's not your view and hopefully that is the case across the country. the other side of the coin is the notion of what are the disincentives for prosecutorial misconduct. and can you cite incenses where examples of bad judgment perhaps even judgment that crosses the legal boundary into potentially unlawful conduct has actually been sanctioned in a way that every other american citizen has to face consequences in the context of the criminal justice system when they make a grieve yus error? will. >> in the federal system, we have the office of professional responsibility that receives complaints and investigates allegations of professional

misconduct. state bars do the same thing. there is a doctrine of sovereign immunity that actors in good faith attempting to do their job, if they make decisions that are later viewed to be unwise are protected from immunity. but there are tremendous checks and balances internal within our department to ensure that our lawyers, our junior lawyers on up to senior decision makers, are playing by the rules and are doing what is right. >> i think my time has expired, so i yield back. thank you. >> thank you. let me first go to judge -- actually i think i'll go to our u.s. attorney. you mentioned environmental crimes. we've had testimony before this committee and i personally know

of two businessmen in my district that were convicted in the '80s of environmental -- violation of environmental statut statutes. none are actually criminal statutes. by regulation, it was made a crime. and the regulation basically said the storing of toxic materials. in both of those cases, what happened, and i'll just give you one example, a gentleman who is a vietnam war veteran, businessman, bought a piece of property which had been a business, ongoing business.

he found on that site some barrels and he. >> reporter:ed reported to the epa that he had found these barrels. and he was told that he needed to dispose of them. he contacted them back and said it will cost over a million dollars. he started disposing of them, but they gave him a deadline. and he didn't meet that deadline. here was an individual that bought a piece of property, not knowing there are chemicals stored on it. notified the agency. started disposing of them. and it's hard to get people to take these chemicals. that's a very expensive process. and then going with mr. patton is saying, his testimony on page

seven, i can see in a lot of cases where the u.s. attorney's office for the environmental protection, they have all the resources. he is faced with the situation of hiring an attorney. they actually indict him. he's offered a year and a day to serve 60 days. he's told that if he doesn't accept that, that he could get ten years. his attorney spent over $100,000 in the 1980s on attorneys. he can go to court, can he roll the dice, can he phe can pay hi attorneys money he doesn't have the dice, he can pay his attorneys money he doesn't have. but he chooses to cop a plea.

he's obviously very bitter about this because he thinks he's done everything -- and i think -- he says to me everybody says why dp didn't you go to trial. of course he's saying i can't risk this. i have young children. he has a criminal record. can't vote. that's how i found out about the situation. i don't think many people knew. you know, mensrea, is intent to violate the law even after you notify an agency something that you didn't cause, does anybody have any comment on that any actually talk to people up here on various committees and in the judiciary committee, and they said there was a slew of these

convictions back in the '80s. literally thousands of these cases. >> i prirkt tappreciate the que. i would not want 20 years from now to second guess every charging decision. but just on the facts that you described and nothing more, if that came if me today, that would not be a federal criminal case. >> now it is not. i think it's changed. >> but let's assume that instead of it being an individual, sole practictioner practitioner, that it's a company that routinely deals with hazardous waste, has professionals aware of the regulations. perhaps are warned that you must dispose or you will face a legal consequence. and they affirmatively choose not to. then that probably should be a crime. and this gets down to prosecutorial discretion. the reality that we're dealing

with is that i don't have enough people, we don't have any agents, enough prosecutors to deal with the 100 statutes, guns, fraud, child exploitation, that we face every day because we have so many people in prison and our budgets are so stretched. so a case like an environmental regulation of someone not throwing appropriately disposing of a barrel of waste, to be honest, that is a peripheral matter that i'm even less likely to reach now because i can't get my core work done. it's only if we look hard at sentencing that we increase the amount of resources available for us to get our core work done that we will really be able to sustain the system going forward. >> anybody else have any comment? i see my time has expired. mr. sky. >> thank you, mr. chairman. i don't know if we usually

introduce guests in the audience, but a group from baptist temple children just arrived and we wanted to make sure they were -- >> could they stand so we know who they are? thank you. they're touring the capital ig and capit capitol. >> what school? >> six mount zion baptist temple church in hampton, virginia. >> okay. >> that's your district. you have an outstanding congressman. >> i wanted to follow up on the questions. you suggested that perhaps strict liability may not be appropriate if health and safety is not a factor. even if it is a factor, we have willful it is regard to get past district liability.

and we have civil signs. what rational basis would there be when people just didn't thou know? >> i think there is a greatly enhachbsed deterrent effect. when you're talking about people that work in highly regulated industries like the food and drugs, public -- protection of public health and safety, then it is a policy choice that congress has made to force those people to know the rules. and if they do not know the rules, then there is a criminal sanction. we had a recent case involving jensen farms, a business that produced fresh fruit and they had cantaloupes that were insufficiently washed and they had listeria on the cantaloupes. they got into the stream of commerce 20 or 30 states and ultimately tied to 33 deaths because of the ingestion of that

listeria. no evidence that the two proprietors or two owners of the business intentionally sent tainted cantaloupe, but because they're operating in a business that directly has that kind of impact on health, the strict liability misdemeanor of being responsible for ensuring that did not happen was employed by the department. in cases like that, we -- >> you mentioned a misdemeanor. >> not a felony. >> and civil fines were insufficient? >> the judgment of the prosecutor in that case is that if it is a business problem, it can be emil or rated by writing a check and dissolving a civil case. insufficient deterrence.or ratea check and dissolving a civil case. insufficient deterrence. criminal sanction has a greater attention 2k3wgetting. >> but this is limited to health and safety involved? >> the bp oil spill for example,

there was no one who intentionally injected oil this to the gulf of mexico. but it was of such magnitude that a responsible corporate officer could be held responsible as could the company. generally those crimes are in that area, highly regulated industries, sophisticated actors who have to make it their business to know the rules and ensure that people are protected. >> highly regulated is an important factor because they know the highly regulated nature of the business they're in. >> congress has decided that we will put about the onus on them essentially, the public, the person eating the cantaloupe, he can't protect himself. that's why as a policy matter, the onus is on the company that distributes that to ensure health and safety is protected. >> thank you. judge keeley, you mentioned state offenses should not be tried in federal court. should re perepeal the statutesr

allow discretion of the prosecutors? >> i think the response of the conference would be that we've always urged congress to do reasonable review of statutes to see if there are still effective, if there is still a need for them. so in those circumstances, it would make sense to review those statutes. it would of course be with that the discretion of congress to determine whether those statutes should remain in place or be repe repealed. >> is the decision to trial something in federal court reasonable if there is a differential in punishment? should that be a factor in ascertaining whether or not the federal government ought to prosecute? >> certainly it is not within the conference's prerogative to say what crimes should be

prosecuted in federal court for a particular reason, but among the factors that we have recommended to congress to review, that would not be one of them. >> thank you. >> i know when people read laws, they say congress intended this. many times congress didn't intend. you ride a statute that says that you shall not store hazardous waste. when that statute was passed, i don't think members of congress realized that they were saying if you buy a piece of property, you discover toxic waste on it or stored chemicals this

barrels, or you buy a building are chemicals stored and you almost immediately report that, you find out what it is, you report it, and the cost is several times everyone more than what you bought the piece of property for. and i'm back to this gentleman because this is a real example. he actually said to the epa, you can just have the property. you can just take the property. i'm not sure that congress ever intended -- and it may an misdemeanor, but a civil fine or forfeiture of the property or something of that nature.

do each of you agree that there maybe should be just a tighter general statute on mens rea? >> no, candidly. no matter what we do, the system depends upon individual discretion of decision makers. and if you came to my office on behalf of that client who had the barrel of hazardous waste, again, i cannot imagine why i would bring that case. >> i agree. >> just does not make sense without more facts. but to apply a uniform mens rea standard without a careful review case by case, statute by statute, there may be cases, rare cases, with more sophisticated actors where a

responsible corporate officer should be held accountable as a matter of policy. apcongress really again has passed these statutes in the area of health and safety. so mens rea, congress needs to be explicit when drafting statutes. generally they are. judges try hard to interpret them and apply certain standards to the interpretation. but a blanket standard that would apply universally we think would be over inclusive. >> judge keeley. >> as you know, i'm appearing here todayinclusive. >> judge keeley. >> as you know, i'm appearing here today as a conference witness and i can only speak on issues on which it has taken a thinks and it has not taken a position on the mens rea question. >> the commission focuses on penalties, not the elements of the crime, so we have not taken a position there either. >> and i'm sure it won't come as a surprise that most of our clients are not facing regulatory misdemeanors.

>> i'm sitting here asking these questions and kind of the elephant in the room, this is many half of 1% of all cases. we're not dealing with the 99.5% here. i read on page seven of your testimony, i saw this last night, and i'm thinking this is cu custer's land stand. but you say your office represents indigent in the southern and eastern strict di of new york. all of new york city, five counties north of the city and long island. you have 39 lawyers. for those same two districts, there are 300 federal prosecutors. 39 to 300. of course my first question, and i didn't read the next sentence, well, yeah, a lot of them are

attorneys. but you've even considered that and you say even after that, you represent over a third of those defendants. so a third of them don't -- over a third of them don't. and there is still an 8:1 ratio of roprosecutors to defense attorneys. now, there is no way that you can ftry all those cases. >> and that really understates the resource imbalance because in a doesn that doesn't take into account all of the federal and local law enforcement agencies and all the resources they bring to bear. and cases require more and more time and energy these days. >> so 90% of your budget is salaries. so you have 10% -- you can't really i wouldn't think that you

could pay for many dna tests. >> well, we can. i don't want to overstate it. i think the judicial conference works with us to help us with our funding. but it's out of whack. it's thoroughly out of balance with the resources on the other side of the aisle. even a routine case today will on which involve cell phones or computers that need to be examined. the government will make claims based on cell site data or metadata. these are things that require experts, that require diligence and time and energy to investigate. and we are certainly outgunned in that regard. >> could i jump in on that? high people who are with me probably will be upset that i'm jumping in on any question. but i have to very quickly -- the federal public defender very talented lawyers only represent

in every district a percentage of all of the criminal indigent criminal defendants. they're appointed a lawyer who has to be constitutionally effective. it could be a public defender, a private lawyer on a list from which a judge selects. but we agree the department strongly supports adequate funding of indigent defense. it is important that the resources are relatively balanced. if a defendant needs a dna expert or wants to bring a witness in from some other place, that he be able to do that. if he's indigent, the court pays for that. the attorney general consistently has spoken of the they'd for adequate funding. i as a trial lawyer, i know that i'm frankly in a better position if my opponent on the defense side is an effective advocate. juries wapts to sy ies wants to fight. so we agree indigent defense

need to be well resourced. >> and you mentioned you were a trial lawyer. i was a trial lawyer and you know if you have the resources, it's a tremendous advantage. i've actually sued the railroads and i represented the railroads. and i appreciate the difference in resources. >> you ought to go into environmental defense. you have a future there. >> my people wanted me to ask this question. you talked about your people. how would a requirement that the person -- we're talking about the cases of where there doesn't seem to be any overt act or intention. how would a requirement that the person actually acted willfully, did somebody not just failed to do something, of course the food case you're talking about i guess was a failure, but acted

willfully to prevent prosecution of these types of egreengious cases that i've described? their characterization of egregious. >> the cases in which we have charged a person or are a company for doing something that was not willful are extremely rare. let me emphasize again, they are a very, very small percentage of the overall number. but again, there are instances where congress has made a policy judgment and we agree that it is important as a matter of strict liability to hold someone accountable because they should have known the rules. the biggest example of the strict liability defense in american justice is drunk driving. you don't have to necessarily hurt anyone. but if you make a decision to get behind the wheel while intoxicated, you're strictly liable even if you cause no harm. >> that's a willful act of

getting behind the wheel. >> that's true. but it doesn't necessarily call injury. but we believe that there are types when holding a company or individual responsible, even if they weren't willful, they didn't take steps to pre-spreve injury, we believe that is an arrow in our quiver to use in the appropriate case. >> well, of course your case on the food, there were deaths. >> there were. exactly. >> that's sort of a different -- in this case, there was toxic chemicals that had been stored there that only just continued to be stored there. but there was actually an affirmative act of reporting, i have something here that i'm determined to -- what do i need to do. >> we had a case in our district years ago involving a pharmaceutical firm that was marketing pain killing medication, oxycontin, affirmatively hiding evidence of

its addictive ths. and in that case, my predecessor in this job had three individual executives plead guiltity because they were responsible corporate officers who have a should have been aware that the marketing was deceptive. >> and i understand they acted willfully. they were warned, they were cautioned, you know. i understand. let me just -- do you have any final comments? >> yes, mr. chairman. willful blindness is prosecutable under a mens rea requirement. the problem is when people honestly did not know that violated some arcane regulation and he said up in criminal court, i don't think there is any limitation on civil fines in that situation, but getting in to a criminal prosecution is one of concern when you are dealing with health and safety, you can

have -- i guess you can have different standards. but at some point, you have to know you were actually committing a crime. mr. chairman, i'd like to submit three document, b one from the urban institute, one from families against mandatory minimum, and a letter to the sentencing commission. >> thank you. in fact without objections, all members will have five legislative days to introduce any extraneous materials or statements, or to submit written questions to the witnesses. and at this time, i'll recognize chairman of the full committee for questions. >> thank you very much. i apologize for having to slip away. we have a task force that the speaker appointed regarding the issue of our border and children

and others coming to the border and i had to go to that meeting. but i'm glad i got back in time to ask a few questions. and i'll address this to u.s. attorney heaphy. we learned recently that the solicitor general's office filed briefs with the supreme court this three cases that reflect the department of justice's new position that the willfully element of 18 us c-section 101 and 1035 requires prove the defendant made a false statement with knowledge that his conduct was unlawful. so my question is do you believe it is appropriate to require proof of knowledge of unlawfulness for every federal crime and what about for every element of a crime. >> yes. i'm familiar with the recent position taken by the solicitor general to limit to false statements in federal health care programs, 1035, and 1001, which is the general statute which prohibit wils false

statements. but "willfully" has to be read in context. there are other contexts in other statutes in which the word "willfully" has a different interpretation. like in the securities act or in tax offenses pp, there is no specific intent requirement even though the word "willfully" appears there and that has been upheld by the supreme court. so the opinion was limited to 1035 and 1001, but it does not touch the long settled view of how "willfully" is defined in other areas of the law because of a different context. >> i would imagine that would cause a lot of confusion for those who are not as lawyer ary as you and i try to be. and i wonder, do you believe that the definition of "willfully" should be consistent? >> again, i think it depends on the sentence in which it appears. i think most of us understand --

>> as a legal term so that when one is being given legal advice and when one is attempting to abide by the law and not act in a willful way that would cause them to encounter that, would it not be helpful to have a definition that was consistent across the law? >> i think the department's position was based on sort of a similar view that it was important to make clear that "willfully" in the context of 1001 and 1035 meant someone had to know that the statement was false. as a matter of fair notice, yes, it's important for people to understand that certain decisions will or will not violate the law. but again, a uniform standard that would apply to that word in every context, we would not go that far. >> and with regard to the underlying question of the appropriateness of requiring proof of knowledge of

unlawfulness for every crime, i take it your answer is that you wouldn't require that in every case. can you give us some examples of cases where it would not be appropriate to require that the person have mens rea or criminal intent? >> right when you walked in, we are talking about the perdue phrma case. they were marketing oxycontin, not flagging the addictiveness. and three executives, no evidence they were personally aware of the marketing message, but they should have. and under that responsible corporate officer dock trip, they were charged with and pled guilty to a misdemeanor. essentially responsible corporate officer. so again, these are rare cases and i emphasize we're talking

here about a very miniscule percentage of the overall work in a we have to do. the garden variety day to day work in our department as you you know is dealing with garden variety crimes. but there are limited circumstances where we think it is appropriate to hold people accountable even if they don't though becau know because they should have known given they work in a regulated industry. >> and what about the rule of lenity and the possibility of coded guying this ru inin inini says when a statute is not clear, it should be interpreted in favor of the defendant is this. >> it would be a nom husband for congress to say if we're ambiguous, give the benefit of the doubt to the defendant. judges do that.

that only kicks in it if the language is ambiguous. so we would always urge congress to be very specific this terms of what level of intent is required in defining crimes. >> congress tries, but with 4500 separate federal criminal statutes, it's not always as clear as one might think especially when you don't have the real life case matter before you that you're applying the test of that language to. and that is why i think some of the criminal law scholars haved a compaadvocated something like. let me ask any of the other panel witnesses if they have anything to offer on either of those two subjects. >> i had mentioned earlier that the judicial conference has not taken a position on mens rea and i'm here as a conference representative.

so, no, i don't have any additional comments. and i mentioned as well, we focus on penalty, so we don't have a position. >> all right. you're the representative of the defendants in these cases. what do you think? >> i am, congressman. and a few moments ago to many laughs i note that had we don't deal with too many regulatory offenses in my line of work. most of our clipts clients are more serious felonies. of course as a broad principle, i think -- >> but this could apply in any type of criminal violation of the law. >> it could. and certainly we do deal with issues of false statements and i do think mens rea requirement in those situations outside of the health and environmental regulatory situations which we really don't deal with on a regular basis. but as a general principle, i of course it's vital.

it often distinguishes from civil misconduct and it's an important distinction. it's why we impose some sort of separate moral sanction because of the person's intent and what they meant or didn't mean to do. >> well, thank you. i want to thank you all. i do have a concern that individuals who believe they're acting in good faith and did not know that they are willfully violating the law, i think that the overall nekts differenceness of the rule of law is weakened when you don't take into account a requirement that you have a showing of mens rea. and i'd be happy to work with you and others on whether there is a narrow band of exception to that. but i think in general, that should be a equirement ank you, mr. let me say this, if any of you have any -- up, closing statements you want to give. i will say this. they're is bipartisan recognition in this congress,

and i am retiring after 20 years i have never seen such a bipartisan recognition about the urgency to address over criminalization over, i guess, federalization of criminal cases . sentencing reform particularly. there is broad agreement among u.s. attorney's, judges, members of congress. i think the general public. it is very important thing. i think the chairman for recognizing that, mr. scott, mr. conner, and others for offering legislation which we have some of our most conservative members. hopefully it is something that we can do.

if we have to do it incrementally as opposed to trying -- i don't think there is any perfect solution. my would hope that we can take some action on that. it looks like some of the other issues are going to be much harder to gain consensus. we appreciate your testimony. our federal judges have been telling us in my district for years that we had a problem. and they continue to tell us. and i know that our inaction to a certain extent is precipitating the problem. so i thank you for your attendance. this is important testimony. and as we read your testimony, we may have additional questions for you. at that time we have a vote -- less than five minutes remaining on the floor. some of us are not as fast as others. [laughter] this hearing is adjourned.

>> thank you. [applause] [inaudible conversations] [inaudible conversations] >> now conversation on the israeli-palestinian conflict and the role of the u.s. we will year from former middle east peace negotiators from the obama and george w. bush administration. [inaudible conversations] >> good afternoon. good afternoon. very good class. good afternoon and welcome to the wilson center. it is enormously impressive to be the president and ceo.

congratulations. participants. you are hear what to put forth a timely and troubling topic. someone who wants to the middle east very carefully during 17 years in congress and made 25 trips to the region during that time there is clearly reason to worry that we could be on the cusp of the third. i know that is something we will explore. hopefully comber heads will prevail, but the tit-for-tat that we're watching hourly between the israelis and palestinians is extremely worrisome. i have heard conversation on some of the top should -- talk

shows today about the need for a special envoy. i know that is something our moderator was asked about. most observers think the egyptians are in the best position to play that role just. as yet at least to my knowledge they are not playing that role. today's conversation comes at a crucial moment. both -- what government governs all the palestinians if any? does the integration of the technical side of a mosque and suzie the palestinian authority. is the best operating separately is that part of a mosque contributed to the problem of the solution? they have invested considerable attention to developments. israeli minister of justice and

palestinian chief negotiator among others. close to half of our ground troops, something you may know about, telephonic conversation about how sponsor. close to half of are nearly 30 ground troops briefings to been a -- not devoted to the region. is there will be introduced in more detail. a brand new father of us on. congratulations. senior fellow of the american task force on palestine. i close friend of mine, the john morris about professor of peace and development at the university of maryland. senior fellow. in our moderator, as mentioned, the ubiquitous and david miller and former senior negotiator for

six secretaries of state. >> thank you very much. i would also like to a knowledge three people who are not here. maybe watching. and the wonderful. [inaudible] to i think was having cataract surgery today. the invitation for this event read something like syria and iraq would be dominating headlines. the issue remains volatile and unpredictable. no idea that we would become the tragic beneficiaries of what has occurred over the last week for so. none would reject the idea that violence and terrorism are a handmaiden of this process for

over a century. but what we are witnessing mayor may not be new but is a constant reminder of the implications of no resolution of conflict. since 1967i would argue you had a different generation, a perverse dance with his own perverse intimacy between israel is the occupier and the palestinians are the occupied. they took the conflict to a different level. israelis wielded power, formidable and its own right. terrifyingly formidable in its own right. together this interaction guarantees and continues to guarantee real dysfunction, tragedy, and violence. the answer to all of this, we know that it is, probably the least bad option to the conflict, but that is not happening right now.

it may remain not happen in the future. we have chosen to focus in this session on the palestinians in their politics. the two peoples may well be focused internally and inwardly in the months to come. in the coming session we will deal with the israelis and their politics. i would like, and i can influence to a certain degree my colleague's presentation by arguing that they should stay away from the palestinian peace process. i am not naive. this is not a problem. palestinian reality is influenced by his era. we really do want to drill down. i also close by saying one other thing, personal not. it's important to focus on the palestinians. frankly, we did not. we focused far more on trying to understand the israeli realities

. if, in fact, we do want to produce an equitable and durable solution. so the rules are simple, five minutes each. we will start with you. ask a question at 231 presenters are done we will go to your question. one last comment. question, identification, we really do want to get in as many questions as we can. there's only one way to do that. no comments, just questions. >> the first thing that ought to be noted about what is happening at the moment, in the context of a flare-up to the palestinian and what it says about where palestinian politics are is that it is inescapably connected to its broader regional context.

what has happened to palestinians and within the palestinian and what will result is reflective of independence on brea regional changes in the arab world. fadel think there is any way to separate the palestinians out from the broader arab context in which they participate. while we look at this, remember that a whole series of questions are being asked of the arab world which are not resolved yet and is reflected. i can mention those in particular because all of them are experiencing their own crises. i think that there are related and analogous questions being asked in all of those crises as well. and during this context one of the most difficult aspects not only for palestinians also for israelis and others is that no one is in clear control of the situation partly because a where is flaring of and partly because

most of the entities, including palestinians and others involved are in their own form of crisis. for one thing, a lot of this has been focused on east jerusalem. and in jerusalem really the palestinian security forces cannot maintain because they do not operate there. they just don't have adjusted to it there. they don't have the manpower. similarly the president's ability then phyllis what happens in jerusalem is much more limited than his ability to get influence what happens in area eight. so that is one thing. even further, this is being manifested in outer parts of israel as well. there, i think, the ability of traditional palestinian leaders to exercise the kind of control is, perhaps, even less. and so in answer in sense it is

very hard to lay the consequences for things that happened outside of their area of perfume at the doorstep of, say, the plo or the nba because they really don't control the situation. in addition to which, obviously they don't have control over the people in gaza. and even i think it's fair to say that the moss is experiencing a very serious identity crisis as well. and the ability of its political wing, particularly the politburo, but even others within its political leader to control sections and certainly its military wing is certainly questionable. the extent to which anyone is in control of the situation as it is unfolding in terms of creating a real break on rent or imposing a political solution is quite limited. again, that is very important. ..

>> >> the other thing that is

going on in that on the ground they have been allowed to slide with my circumstances which everybody has their share of the blame. in particular since the state institution building program with the ordinary palestinian people in the west bank was defunded and allowed to fizzle. we have notxt had a political safety net to catch that fallout at all and we have no peace process to back it up. in that context where political momentum for erg sustaining unsustainable status quo might come from. and hit crisis and may not survive.ç

and to not prognosticate too much but to be analytical i would say you can see all the different feelings with a greek tragedy and where will go from here could be very grim or attenuated depending on how responsive the people behave in this situation. with is hard to evaluate because as we say it is not clear and with that i will stop i have used up my time. >> i would like to make a couple of points. the current situation reminds me of 1987. i will tell you why. i happen to be visiting jerusalem as the three israelis were objected then

went to right after and the first was operations. then it was shut down while i was there. meeting with a prominent israeli journalists. there was hope because of the absence of urgency that they appeared to live normal lives no sense of urgency that she was hoping for. >> but obviously the when i worked at5tñ it i am reminded 1987 for two reasons. and to in to with that the

it took it away from the palestinian issue. so clear the these egyptians and the saudis and syrians are preoccupied that not enough attention is being paid to what is happening in the west bank. the second comparison looking back in 1987 with that palestinian leadership because beginning with the israeli invasion is the plo became exiled as remote and ineffective.

of course, we don't have leadership in exile but you have a sense as a talk to almost everybody including the of moderates to work with that palestinian authority that is disconnected from the public. they do not even take them seriously one of the reasons to have that national government that is totally irrelevant to each individually to come together to be more relevant that is the context add to the fact that creeping realization that maybe this states are outnumbered with us since to reconcile themselves to the reality. it is only amount of time. that is 1.but i do think we do risk because of the circumstance.

the second point is a when you witness that ugliness#

when they witness civilian casualties' but that appears to be very much a function that their assessment whether peace orç war they don't empathize because they have to harden their heart and when there is peace they empathize we saw that in the 1990's and at the moment people are assuming we are headed to conflict they don't their hearts to empathize the hardened to fight to the bloody war and that is the reality that we face. >> as we speak this afternoon israeli troops as hundreds of rockets have rained down we may be

heading to a major confrontation that neither side wants but may be able to avoid. what we have today is the utter despair palestinian politics has both are reacting to events that neither has the strategy but what it&;jñ means right now locked in the politics of survival. one of the weapons and both face is political legitimacyçi there has been no legislative elections since 2006 and palestinian institutions do not meet with the left bank and gaza controlled by her loss. is that backdrop looked at

that agreement reached in april with the degree on politics are power to reconcile but just to set that mechanism to address illegitimacy that was the elections. the response that was very popular was on the ground but the problem has been for gaza and not to reproduce anything but egypt rather especially since july 3rd and likewise not saying anything of negotiation and all the of while while being branded as a traitor we saw a the spray painted graffiti

cooperating against the backdrop so we have that since april particularly how mice with 50,000 palestinians that have not receive their salary payments since the agreement was reached. but at the same time to show that what you have now is what i think that either how moss wants this to be different but neither one blamed to bring that down but both have thedot sense it will just atrophied by itself. are we on the verge? i agree there are analogies

here to 1987 and 2000 and of those cases popular discontent with leadership when it was so removed from charge upon the ground and in the situation we had palestinian leadership play catch-up. that situation is ripe today for a similar type of situation with the absence of leadership in politics. what we don't know is what it is doing to advocate but we don't know yet. that what we do know is leadership is reacting and this is not a strategy for word. but there are things that can unravel quite quickly.

with a conference sponsored as a left-leaning israeli newspaper. they could not hold out because they felt under pressure. the show's anything seen as cooperating can be broken down.ç but one major attainment that was seen is an unprecedented. the third thing and i will end of this note the price to return to negotiations is going up, not down. and with that i will attend. >> you are more negative than me. i will pose the question. societies end up having to take a long look whether or

not at the kennedy assassination i don't know. but is it possible or conceivable÷lñ that the personalization or this kind of violence could in any way have a salutary effect on the situation? in what the that require from the external part? >> to that cycle right now? >> to give the of little more optimism i know my research that when people assume the resolution they question themselves but they do things that works.

one thing is what is happening in the region. people are terrified. they note hall of lee. they have witnessed the death of several people the last couple of weeks. horrific but compared to syria or iraq, people don't want that. you can see the of backlash people behind the state to see the anarchy. there is the mood that does not want to see the explosion. and i think perhaps all the israeli side has a real in generalization if it does not happen now will not happen but a delusion or not

but maybe a since been nobody believes this. maybe they have to figure out another way or come to grips with the reality to swallow hard to do what they have to do. and those are the elements that providebç it gives you a flavor of where things are. that is the point. if that is enough, i think in the end the events on the ground we see that now with homospory them netanyahu

went -- want to the escalation it does not serve them but they might find themselves it is unavoidable but still they can make a difference if we don't see that. >> rather than to the the adversary but what came before to be the ally with the first and second, if i am located for a hopeful lances there any? >> i will agree that if the majority of palestinians in the occupied territories with those events that happen the fact we don't have one suggests they will not go that route. but that is important to. asking about there party's i will take you up on that because that is an area for hope. there are two ways in which to look beyond the immediate

crisis. but lend themselves to the question what can be done by third parties? including the united states to help change the dynamic. to be very dependent on external supports that gives regional and international players more of the say as it evolves more than normal than usually occurs there has been construction ofç palestinian politics over the last few years with hamas and much smaller groups them before.vay there has to be an opening up it is absolutely crucial and third parties can play a very big role. but the frustration that we see this not only have to do

with the political frustration but also the shutting down of the space that opens up in civil society. during that era of state building and again that those to the straightforward things they can influence and third parties in terms of economic growth. they're all kinds of things with large amounts of small projects that cannot be hijacked but lots of little projects to surround the territories. it is very possible. i don't see why it should not succeed.ç

>> we haveçxúswñix days is a convergence of distinct areas@$q

>> >> in those lessons from a the past. but i don't think the american side is part of the equation. >> first of all, right now the objective for american

diplomacy is crisis management not conflictn,t resolution. but to be coal what diplomacy can do at this time that we have been trapped into a way of thinking with john kerry there is a huge state department edifice thousands of diplomats i went argue for diplomacy at the level below john kerry to b.c. in and me engaged and jordan and israel and palestine and turkey is where are you guys? you are not here. and i have of call today these things administration will send anyone? there is a yearning for

american and disability that is not there and i would argue it could save a few lives at a few thousand dollars for the airplane ticket is a worth the price. but i don't think israel will go in and it is in a dilemma right now whether or not it is willing to sustain a ground incursions -- incursion but the past to do with a strategy. israel looks to hamas to enforce order in the guise of. the concern is not about hamas but the more radical forces that it is looking to hamas to be the enforcer. but to play that role in the past to have a political out so it will refuse to stand down because it wants to

show and got something for it but that leads to miss calculation. but right now not out of the zero casualty's but that they would get something even worse. which they might get any way which is the tragedy and the dilemma the absence of a real strategy on either side so this is a practical and gaza there is no way out to reconcile the two sides that are divided with that political division of today. >> i am not completely convinced this is only about israelis self restraint because i do think there are factions it is clear today because not only have you had irresponsible and in defense of rockets coming

from gaza but hamas taking responsibility for those. so there are factions that are interested in promoting and escalating. although it is anybody is guess the point is with there is space for several parties to choose there would not have secretary kerry pack his bags but will conflagration how end why she will let stop in to draw back down to the point of benign neglect with conflict management. that tends to have been fairlyç quickly and i already

explained where i think the opportunities are. >> okay. please wait for the of microphone. >> i am a reporter with the "daily beast" thank you for your time. so could you put a finer point on the question what exactly was the relationship of the failure of the peace talks?v3á secretary kerry said publicly if the two parties do not reach the two state solution soon but was he right it could lead to the

violence and if so does the government respond -- blame some responsibility with those parties that weren't necessarily brought into at the wrong way or the wrong time? >> first of all, the actual beginning of the violence and the palestinians could have happened at any time withoutç regard to any peace process.çñ+w>vozñai these happen unfortunately and i dunno if that is self is connected to it that is unbelievable that is resonating with that environment is right to who will late up the match but it does not always catch so that is in part a function of many things including the

collapse of the peace process with the realization. i don't push that to say to raise that expectation therefore that is what happened but frankly they were incredibly low before. if anything john carey succeeded to extend a little bit longer those polls two or three years ago erasing the thinking it is too late for the two-state solution. it is not like here comes this administration it is coming then it collapses. no. i think that is wrong. there should be a tremendous pride of the mistakes or failure that it itself is up problems. >> it is not linear.

look at july 2000 with a full-fledged presidential summits expectations running dangerously high. wake of that failure even run the united states was that the best of its capacity the absence of a monopoly. clearly when it comes to palestinians but even on the israeli side. that is the wrong way to explain this aeschylus torrey cycle. >> that is what i meant no one is in control. look. >> i would not try it -- to draw it to linear either and he shall not be criticized for trying but the minute

the lead granular the level politics were pushed aside for the big picture negotiations in those dumped in favor i think there is a certain loss of way. with dole community the third party that existed there are quite a few combined to drop the ball to let the state institution building program becomes a secondary dispensable project when it was not at at all. if there was any linear progression between the collapse of the entire approach to palestinian products to allow them to

construct in allowing hope to drive up on the groundç and with the out-of-control situation we have today there is a much more direct cause and effect between those two factors more than in big picture diplomacy of what we have now. >> one thing to keep in mind the violence didn't come out of nowhere.ce= there wasn't up debt -- the uptick in the west bank over a period of time. fortunately it had not come to the point that it had recently but it is part of the landscape. as what we have seen in to ammunition but i don't think it is fair to blame john kerry but there is the

diplomatic vacuum in the one thing a.m. concerned the way diplomacy culminated is there was no plan me. and there should be some sort of diplomatic fall back and that is what i tried to allude to. >> but there was a neglected part of plan a with all this into the question of daily life of what i keep coming back to that died on the fine you do not have to go with part of plan a that should have continued to thrive. >> benjamin, there has been a lot of discussion but conditions have changed in a

major way and that is the new focus of the palestinian leadership of the non-violent struggle. and also through mobilized supporters rolled wide to put economic pressure on israel specifically through the boycott and sanction movement. but while this is happening. >> we need a question. >> but as frustrated as these efforts isn't it time for a shift for a more nuanced position by the wes with these importantdf positions? finish to the wes acquiesce or support?

>> i think the american position is consistent one of the biggest obstacles to progress and why the two-state solution is dying as an option is that every administration has imposed dip yet we have no urgency with diplomacy and israelis are frustrated that there is no pressure to stop that from happening even though it eats up the two-state solution every single day. and you could even argue credibly one of the reason the israelis agree to get back to the table when john kerry started the process was the pressure from europe to boycott products from the israeli settlements that is expanding as we speak just in the past week up at 17 countries have announced they were warned against dealing with the israeli settlements.

the administration itself looked at that and one option on the table was a fair not going to do it then give the green light to others. but that is separate because boycotting the settlements is something very specific. but broadly is how do you separate the two? signal you support israel but at the same time. and very targeted type of action specifically related to settlement matters. you will see a lot more pressure in that direction. i carried out the past year and a measure public opinion poll about american public attitudes toward death

israeli-palestinian conflict and i ask the question if people would support if they concluded the two-state solution is the long production? with they support the wednesday solutionziy indefinitely or without full they have a problem with the idea with the indefinite occupation with inequality. in the end of way with the peace process used have the sense it will come if you have that resignation it will happen then you have the permanent situation. people just don't want to deal with it including those that care about israel.

therefore you will see that direction if you don't have a lot of violence because that creates a completely different environment. a zero sum, the survival survival, and everything takes you in a different direction. >> next question is. >> i am a retired judge. plywood you think the state department officials could contribute to a peaceful solution in there when you have noç credibility with the >> going back to lloyd henderson or whenever a the working officials in the state department have always

been antagonistic to israel. maybe you have had political leadership that has not but as far as the working people with the state department they have always been anti-israel so you have no credibility there. >> i think between us we have if you're 60 years of state department experience but it has historic resonance does not reflect the state department of iyip'ged i would argue but as a result there may be tension right now between the prime minister's office but across the broad spectrum of relations there is a close working relationship at all levels.

i think that the state department that hates israel will never listen to west does not resonate or correlate how we live today. >> also with the fictitious counterpart to say the problem is precisely the opposite. over the last 30 years at the state department as well as the white house has been consistently and fundamentally pro israel to a degree that basically it tends to look at the requirements as the departure for any policy. i would argue that is frankly more correct than incorrect. i don't think that is the case. >> hi.

of a research assistant at the center. with netanyahu coming out to say he is in favor of independent kurdistan what is your take on that with him being pro settlement? isn't it ironic he is pro kurdistan but not the two-state solution? >> i think the israelis have had a long-term relationship with the kurds going back decades not just after the 2002 war. and in recent years they have felt of close cooperative relationship randall looks like it is the merging at the autonomous region. so from the israeli point of

so the problem for them is they have a lot of common interest. look at the new age june government who has been cooperating militarily with israel wants to see:but to call this a calamityç so have a lot of push back for those they are trying to get close to. cursive is the iranian influence in the region either and see that think very well because most are like independent kurdistan sonata meaningful call but with some arab countries it

is helpful. >> and for those who are trying to engineer over the long run it is helpful to have those as one of the few middle eastern powers and perhaps before the kurds themselves made it a public goal it is entirely uncomfortable. >> we have an overflow room of the least 50 people spinet would there be a peace process for israel if religion was taken off the table? >> would there be a peace process? >> getting more successful if it was eliminated?

just one of you. >> i have for a long time the minute you stop adopting a religious language and that is and it you are in trouble because ultimately you are allowingñp the most fanatical religious groups to claim the upper hand because they will always have more legitimacy as a religion instead you will be as a nationalist the only reason the israeli-palestinean conflict is that it moved to which people would be satisfied on part of the territory rather then the religious claims as is undoubtedly the case the intrusion of symbols and meanings in the struggle have made harder to resolve

a conflict undoubtedly. >> a fascinating panel. he started to say it is not a panel about the two state solution but palestinian politics. so here is a political question so far i did win it aspin last week he was with the finance minister before that and in that region drafted the two year plan for palestinians to burn the statehood enormously popular with the west so he did not have a lot of street credibility but is still interested in palestinian developments. if he came back would ñake a difference? >> i am sure they have strong views. fascinating question. >> the idea he has propounded and enacted the

sole possession to put it into practice by others concept to have accountable responsible government that looks to meet the needs of the people this can be enacted by anybody. i now want to link it specifically only who i respect enormously but the ideas are universal.a&v that approach could and should be enacted immediately. and the thrust of what i have said today is to suggest the donor community and other third party striate to promote that thinking. a terrible pity this space

for the project was shut down in a fit of not understanding the consequences for its political life in the aftermath the unsuccessful by the palestinians in the main consequence of that effort with the cost of the plo is to constrict the ability to govern and ultimately to stay in office there for to proceed but as i talk about that need that is what i have beenç lying to with lots of little projects with the occupied territories that renders them non hijack double and not only financial but political that is what i

have in mind. pled not only is there a future for that but there has to a and will be the matter to points that into place so yes in a very big way to all of that. >> will we have seen is of backsliding of the bottom up approach and we have seen that construction the freedom of speech and freedom of expression and all sorts of things that is contributed by the top down focus but the interesting thing about fayed is his popularity adheres although it is hard to measure and his father passed away recently and the mornings turned into a popular demonstrations. fúi-that ise

support fayed but there is no load lifted within palestinian politics to translate the efforts consideringç there is a law calem onx)ó'zxmç palestinian politics that is why i have been abdicating as a real political change that it is the major vehicle but not the only one. we talk about the need for reform since the loss of 2006 but most people on the west bank are skeptical it will ever happen. but the good news is they are sick of that as much as hamas. the problem is the majority way of the approach to there is no mechanism to route translate why we have violence in the streets today's. >> i have a lot of respect

and he is capable but let's face it. now matter how good he is the problem right now is a political problem no one can transform as well as occupation continues with no political horizon and that is not something fayed can deliver. >> i am with the news network given kurdistan. might question is similar why is there so much more international support for palestine as opposed to the kurds? is that because their kurdish and not arabs or muslims as well? >> i will challenge you may be at the emotional level you could find more are interested with that palestinian cause precisely because of the conflict it is a large international

issue but look at the way in which the krg is moving to kurdish independence and i also believe my personal opinion is inevitable. it is completely inevitable6yñ going back again in my own opinion but this is virtually a done deal and it is when. not if. there is a lot of players in the region that don't want it to those that will award to but it's by a perhaps a very good strategic sense as well as a willingness by those who might have opposed this to a kurdish independence to acquiesce to

cooperate. i thank you will see that. i think the kurds are much closer to their independence and palestinians. >> also the nationalism of must -- may be the largest international movement in the world with your geography education is critically important. israelis and palestinians walk down the street -- the stage for the peace treaty that was resonant but remarkably transparent. the conflict is easy in successful western media understands this which is why it is disproportionately covered. to the extreme degree given world which are far more barbaric and far more costly.

three key religions all concentrated in one place in the center of the world? the kurds did not have that. that the international community bradley has opposed disintegration. and in this particular case not just for one precisely if you have 30 million kurds with iran or iraq or syria there has been the aversion to redraw the boundaries but with the palestinians it is completely different conflict.b? talking about territories. [inaudible] spinet the boundaries are

determined by what they will except but generally the international community in respect of the borders is legitimized through the united nations. the history is that it is relatively new looking at that modern states of the middle east to raise questions about the legitimacy but that is not the way the international community is set up in this set up -- set up that is to legitimize to the un resolution. >> but it is fascinating weather occurred closer than we are? spee mcfadyen self is intriguing. >> i've vowed i would not do this but one additional

final question. i should not do this. but i will. you all implicitly agree it may be too late for the two state solution but if that is the case than what is the solution? just briefly. [laughter] imagine the worst. close your eyes there cannot be the two-state solution not conflict ending in character. >> let's differentiate from what would happen from what we would like. to reach the conclusion in two states is impossible i would support one state with people solution is the moral sense to do the only one i can think bush is that likely to happen?

probably not the only thing that" keeps that two-state solution alive is a majority of israelis and palestinians think it is no longer possible don't believe it is one stage there will be violence for years to come so the question is then how do you manage that? looking at it not from a moral point of view or something as an individual with moral views the from the foreign policy point of view than we are in trouble because the matter what you do you will have eruption. no obvious equilibrium and you will have one possibility that will be for the israelis to increasingly look in terms of even if called possible annexation possible legal but not gaza said it does not solve the problem in gaza or with

those refugees outside and does not address a lot of the question or policies of the west bank is not a policy for stability. there will be violence for years to come. >> is a proximity problem. >> first of all,. [inaudible] >> second everyone has lifted this problem comes to the same conclusion in one form or another the only solution is partition in some form. third, i don't think there is such a thing as a one state solution may be the one state outcome but that is the prescription for continued violence. so we come back to the two state solution. one approach is pursuing recognition within the security council so you

enshrined the idea between israel and palestine but that is a diplomaticç answer but the short answer i don't think there is a one state solution. >> i agree. there are two outcomes it is not a smorgasbord of choicessf we can have a workable solution and there is only one for the reasons that were just outlined. and that would meet both parties and it can be done. . ..

>>