[inaudible conversations] >> scheduled for noon eastern time today, live on c-span2, a hearing on the future of energy in africa. officials from the state department, agency for international development and the energy department are all among those scheduled to testify. we note the use house plans to vote on the keystone xl pipeline approximately at noon today. so that could push back the start of this hearing as committee members vote on the house floor but we do plan to cover it live on c-span2. later on at 2 p.m. eastern time it's a forum on opportunities for fiscal reform in the next congress. specialist with the committee for responsible federal budget,

the bipartisan policy center and the concord coalition all offering their views. live coverage on c-span2. the supreme court recently heard oral argument in the case balancing federal whistleblower protections against national security. the case involves robert maclean, a u.s. air marshal fired for telling a reporter that the tsa canceled missions on commercial flights that required marshals to stay overnight. his supervisor told him that the cancellations were to save money, believing the tsa action risk passenger safety can maclean leaked the information to a reporter prompting congressional criticism and leading to the tsa's reversal of his decision. next up, the oral arguments in homeland security department versus maclean. >> will hear arguments first this one in case 13-894 of the department of homeland security versus robert maclean. spent mr. chief justice, and may

place a corporate in section 114(r), congress directed tsa to promulgate regulations prohibiting disclosures that would be detrimental to the security of transportation. the information covered in the tsa regulations ranges from a flight crews plans within with a hijacking attempt to bullet was in airport security systems to the kind of federal air marshal deployment information at issue in this case. under the federal circuit construction of the whistleblower statute, any one of tsa 60,000 employees may override tsa's expert judgment and publicly disclose sensitive security information and that employs possession based on that employs reasonable belief about what public safety requires. >> at what point was maclean told that this qualified as ssi? correct me if i'm wrong, about this, but as i understood he was fired, and it wasn't until the case was before the mspb that a

determination was made that this information qualified as, what you call ssi. >> i think that's not quite correct, and let me see if i can work it through. the information about federal air marshal deployment has been prohibited by regulation for more than a decade. it was prohibited expressly prior to 9/11. it was and regulations that were promulgated by tsa after 9/11. 9/11. >> when was he first told? >> he was told that air marshal deployment information was ssi in the training and it's in the regs. he argued before the ministry of judge that he was unaware that this information was ssi and the judge rejected that contention. that's in the appendix. what the administrative judge found was his testimony that he did not know this was ssi was inconsistent with nuance and evasive, the judge rejected that

contention. what happened in the tsa final order, is that tsa creates a final order determining something is ssi precisely so thathey can be appealed to the court of appeals under 49 usc 46110 which gives a person aggrieved by a tsa order six these two goes onto to the court of appeals. he did so and the ninth circuit rejected his argument that this was right to give classification of ssi. so i think as the case comes to this court, there really is no dispute that he understood that this was ssi. >> in many cases, it will be a close question. i was surprised in your reply brief the recognition that the employee can, choose to quote it, can tell the media that federal air marshals will be absent from important flights, but declined to specify which flights. i think will be very difficult

to figure out what's ssi and what's not given the kind of fine line. cookie say, air marshal seven to 50% from transcontinental flights? >> there may be close cases. the administrative judge heard this contention from mr. mclean and rejected it. >> what contention? >> that he did not know that this was ssi. >> what about my question? could someone say the number of air marshals on transcontinental flights has been cut 50%? >> i think that without specifying, i don't know the answer to that. i met someone at tsa who was classification. >> how was mr. maclean supposed to no? >> because mr. maclean was trained to know, was trained in ssi, received training on that. and as i say, your honor, there is no dispute that he did know that this was ssi. >> i'm a little confused. like justice ginsburg, i thought from a briefing that that was

done generally beforehand, that something would be distributed to people without a confidential notice on it so that people would be -- >> that would be mark ssi. >> that this was ssi. but this particular information wasn't so designated before the release. >> that's correct, your honor. but the best practice is to mark ssi. >> you wanted before it's going out. >> that's correct. whether or not it is marked that way. and against the regulations are clear on this, that details of federal marshal deployment are covered as ssi, and this issue was litigated before the administrative judge. >> if there were no regulations, just the statutes on the books, at that point are there any prohibitions on disclosure? or there can be no ssi with at least some regulation?

>> that's correct, your honor. and if i could turn to that, what the federal circuit held, the federal circuit held that the whistleblower protections extended to this information. but properly read, 2302(b) 8-a squarely forecloses that result. what that section does is exempt from whistleblower protection information that is specifical specifically, disclosure which is specifically prohibited by law. the federal circuit on no specific prohibition here, indeed, no one at all. under the ssi regime, disclosure was prohibited both by the statute that mandated nondisclosure regulations and by the nondisclosure regulations -- >> it wasn't prohibited by the statute until the regulations, right? >> that's correct, your honor. >> so it is prohibited by regulations. let's not play games spent i think we would prevail even under that interpretation because it's prohibited by regulations. under this court decision in

robertsons and then sends it to address the question specifically center from disclosure i statute and this court said in robertson, a regulation that gave to the ministry of 42 exempt from disclosure after public interest wayne and in sims with the court had the stature to get to the cia director and instruction to protect sources and methods. and the court said in both cases that was specifically exempted by statute. >> your reasoning is, it apparently came as a prize to the government lawyer in the court of appeals. he said, i will be as good as i can. specifically prohibited by law here means the statute. again, the maclean is posting something applicable to the court of appeals doesn't know. >> i think the lawyer did say that with over 100 explain a regulation promulgated pursuant to statutory mandate would control, and that's what the federal circuit understood. >> you seem to be arguing that

it's not something mandated by statute. you use the two foia examples that you gave to authorize or permit. so what is your position today? before the federal circuit it seems to have been this is statute, not regulations. now it's some regulations, what we don't know whether regulations that are mandated or regulations that are merely authorized. what is it? >> so let me be as clear as i can. and we believe that it is specifically prohibited first by statute which was the argument goes made clearly below, and in the briefs here and that disqualifies. second, we think that it is prohibited by regulations that are prohibited pursuant to statutory mandate, obligated pursuant to statutory mandate. if i could point the court's attention -- >> excuse me, i must've misunderstood. i asked you whether or not the employee could be terminated if

only the statutes were on the boat in a relationship that about you said no? >> because there would be no to ssi designated. the court found that those with specifically, there were specifically nondisclosure was possibly authorized by statute it if i did finish the answer to justice ginsburg and to the chief. to the chief justice. at page 15a, the federal circuit said was regulations plummeted% to congresses express instructions would qualify as specific legal prohibitions. both arguments -- >> what was that go to from? >> the federal circuit's decision.

regulations promulgated pursuant to congresses express instructions would qualify. >> would you qualify, because congress disagreed with robertson, didn't? ended in the mid-foia. >> congress committed foia, yes. >> as soon that we read the statute more or less through the way that foia does. the amended foia. the meet the amended foia criteria? >> we do. >> which probably does but which from and why? >> the senate legislative history consider this question and said that if -- i'm sorry. can i step back one second, your honor? we don't think that you need to meet those amended, the amended foia. but taking that as a given, but the senate report said --

>> it seems the eminently reasonable despite robertson. i mean, expensive what you were arguing, one of the two foia exceptions. to me which one. >> it's the exception that establishes particular criteria for withholding or refers to particular types of matters withheld. we think in the legislative history what the senate report said was that the trend by statute, one of two d. three would qualify and that's a statute that said the direct of us that they shall be responsible for protecting intelligence sources and methods from unauthorized disclosure but that was hosted. that's no difference for our statute and we think that even can we think -- >> yours is a bit more specific. >> so we think it follows that if the court relies on the statute that we meet that statute and, of course, that makes perfect sense but if the chief justice --

>> i'm not sure. i mean when you have a cia statute. they say you cannot disclose agents, sources. what this is a? >> it says -- >> sources and methods. there's another one that refers to critical infrastructure information. if i except those as being sufficiently specific or having sufficient criteria, i look at yours. and your says, their shelby regulations prohibiting the disclosure of information obtained or developed in carrying out a security. and now here's the criterion, if the undersecretary decides disclosing information would be detrimental to the security of transportation. it seems to me that could include everything from a sparkplug that is deficient in the airplane to a terrorist.

i don't know how i would judge that. telling cia you can't disclose sources seems a lot more narrow than telling the department of transportation or homeland, what is it, dot, but i put in charge of airplanes, you have a regulation, detrimental to the security of transportation. i don't know, how is it decided? it sounds to me like that's quite a lot of broader sense so much can be detrimental to the security of an airplane. airplane. >> a couple of points on the. first of all the court interpreted the statute in robertson these officials specific. in robertson what the statute said was that administrator shah order information withheld from public disclosure when, in the judgment of the administrator, the disclosure would adversely affect the interest of the person it is not required in the interest of the public. >> that's the one before. >> that's the one this court found sufficient.

>> but subsequensubsequen t to that congress committed the act as was just pointed out in a way this is yet to have specific criteria. >> but if i may it committed foia, but strikingly congress did not amend and include that language when it passed the csr a. >> i will look at that. i can do without on my own. i do of the question that only you can deal with. the question i had that only you can deal with is this. obviously, it's a matter of concern that someone could go around and say there are no marshals on this airplane. that is a matter of concern. so if, in fact, that was a real worried about blowing up airplanes for that reason, could be president civil use the second prong and sin executive order will require that to be kept secret? >> and.

>> the president could do that. >> in doing that, does it automatically fall into the 400,000 regulations that govern defense department security information, or could he say, for the purpose of this statute, what we're talking about now, i determined that it should be kept secret. therefore, there is no prohibition against people and getting that information with swedish people, british people, all kinds of airline officials, et cetera? you're saying yes, he could do that under this second prong, yes or no? >> yes, because there's an executive order -- >> okay. if he can do that, then there is no worry. am i right, there is no worry? because if, in fact, this is going to lead to blowing up airplanes, all he is the issues

that second prong. you say i'm not right. why not? >> because that is fundamentally inconsistent with the judgment that congress made that the ssi system should coexist with the classified information and with executive orders. what your honor is saying is that it doesn't matter that the ssi system that congress set up wouldn't work and can't function because the president by executive order to fill in the gaps. >> i'm not seeing anything like the. i am worried about a practical matter. i am worried about the decision of the court against you and getting to somebody blowing up an airplane. i suddenly thought as a practical matter that is not a serious worry because the president can always use the second prong able from disclosing the information that you don't want disclosed. and so far you've said i'm right, and i got into illegal art and. i'm not talking about a legal

argument. >> i think such a system could be devised but i think would be a very odd construction of the statutes the court has before it to say that we're going to undermine and eviscerate the ssi system that congress by statute -- >> no, no. i'm just worried -- look. let me ask my question. my question is, if for other reasons i decided you were wrong, which i still have to face the problem of airplanes being blown up? i'm focusing on this because it's very important to me. you have answered that question, if for other reasons, and you of course think you're right, but you for other reasons i thought you were wrong, i wouldn't have to worry about that ethical problem because there is a second prong. it's important to me that you answer yes or no editing to answer to be yes, you are right as a practical matter. >> i think it is possible the

president couldn't have duplicate the ssi system that congress set up to help to prevent that practical problem. >> to follow up, if the president proceed along that path, what would be the consequences with respect to the class of people would be able to access to this information? this would be classified and that only people with certain security clearances would be -- no? >> the system couldn't work if it was a class or information system. justice breyer system, the answer is we would be in uncharted territory. idabel as a fact of the president, the president have to duplicate the ssi system. it doesn't work under the classified information system that already exist because this is information that is very sensitive, yet has to be shared among people who are operating our transit system so that flight attendants need to know -- >> yes. but what's so hard to duplicate the ssi system to he signed an executive order saying to put a

the ssi system and lightweight the problem we have here of people like mr. mclean revealing information is not a problem anymore because it is in protected by executive order. >> i think that that would work, but i have to say i'm not sure of the ins and outs. but if you think it is -- >> it would have one good effect, and that is it would make sure that the matter is important enough to occupy the president's intention. and -- attention and is not so insignificant to an agency that does is what many whistleblower, doesn't want any criticism of what it's doing can pump out these regulations. it would have that effect, wouldn't? >> it might have that effect but it think that's the judgment that congress may. what congress did was set up this ssi system under the president had authority under the executive order. knowing that the classified information system was set. and knowing in fact what these

regulations said, the very regulations in basically the same form that we have today. when congress moved tsa into dhs as part of the homeland security act, these regulations were already there and congress have been before. >> if i could, he for you get gt away from this, and i understand your statutory argument to me, but the way that the president would do this if you wanted to do it would be but a new executive order, or in fact with his old executive order 13556, which deals with controlled unclassified information, is that what the president would use? >> i'm not sure the ins and outs what the president would have to do. this is information shared outside of the government which is what makes it a little tricky. they are shared with flight attendants the they are shared with local -- >> but i thought that class of information, controlled unclassified information, as opposed to classified information, could be shared outside the government and

executive order 13556 deals with that and the president could simply make clear that the executive order applies to this kind of information. >> so i just don't know the answer to the. my sense is that it would take a lot more than that to duplicate the kinds of ssi system that has been in place for over a decade and a half and that congress signed off on. and so the exact form of the executive order, it's not something that, quite frankly, i think we contemplated here because there is this regime that congress had set up. >> you talked about what congress meant and said that. but the conference report says the language does not refer to agency rules and regulations. >> i think this is a situation,

i'll make initial point and step back if i could and make a series of points on this. i think this is a situation in which the court with the in which the court with the right to do that history with some skepticism and here's why. what congress had before was a bill that said from the senate side it said prohibited by statute. had congress passed it wouldn't be making our radio to argument. what congress adopted was a provision that said specific prohibited by law, a phrase -- >> yes, but elsewhere in the same legislation it refers to prohibited by law, rule or regulation. >> it does. >> here it just had by law. elsewhere in the same statute that says by law, rule or regulation. what am i supposed to conclude from that? >> i think what you need to conclude from that is that the term highligh isla has two x. cy some rules and relations, and we think that it does. it excludes those that are internal agency regulations and

regulations relating to agency organization, practice or procedures. that is the result of this court up in chrysler. what chrysler did was interpret the phrase authorized by law. with the court said the authorized by law in how they will establish meaning and the well-established meaning was that regulations them at the three-part test in chrysler, they were substantive regulations of alleged that time, recently wit within the contemplation with congress and properly promulgated, regulations counted as by law. the cour court distinguished inl agency interpretive rules and agency rules of organization, order and practice and said those were different but we think that is the distinction that is in the statute. >> if that is true and if that is so obvious, congress would not have had to have said, by law, rule or regulation in the of the provision. it could just as set by law and which is it would automatically follow. >> no, your honor.

it's the formulation of sweets and agency internal rules and regulations. and that is precisely that sanction that the court drew in chrysler and precisely the distinction that we drop in the statute. when the statute says by bob rule or regulation it includes all lawfully promulgated regulations, agencies rules, procedure and practice. it includes statute and includes regulatioregulatio ns that meet the chrysler three-part test. so that is precise distinction that this court drew in chrysler and it is embodied in the statute. >> but chrysler, it just had law. law was not juxtaposed in the same sentence as another phrase that said law, ruling the commission to that would seem

that juxtaposition of the two very different terms would seem to defeat the chrysler presumption. >> the reason i don't think it does is because it is equally consistent with precisely the distinction that chrysler true between rules, regulations with the force and effect of law on the one hand and internal rules of agency -- >> boy, that is subtle. that is so subtle that congress is going to draw the distinction between substantive rules and procedure rules by saying law here and law, rule, or regulation there. you can spend out that argument but the notion that this is what congress had in mind when it enacted this thing or that any member of congress had in mind when he voted for it, i find that hard to believe. >> the reason why i don't think you should find that hard to please is the following. by going from by statute to by law, congress went from a narrow

structure that would have plainly foreclosed riggs and instead moved to a much broader formulation that this court had given meaning in chrysler. second -- >> there was one view that by going to law other than statute what was meant was to include judicial decisions. >> it does say that in the legislative history but that's precisely why think this court should do that with some skepticism. would not have included construction of statute this court may. so to say we sweep in the courts and took the statute i think is a little hard to swallow. if i could reserve the balance of my time. >> thank you, counsel. mr. cadieux -- copy all -- mr.

katyal. >> thank you, mr. chief justice. we are not in chevron situation in which the agency is getting any sort of deference. as justice breyer's line of questioning, i think points out, that is a red herring, because congress in the whistleblower act that with precisely that. they gave a mechanism for the president -- >> mr. katyal, if the statute read, disclosure of information detrimental to transportation seed is prohibited and the tsa shall promulgate regulations to that effect, would that be pursuant to law under the statute? >> i don't think so but i'll explain why in a moment spent that's why want to know. are we going to get to one or congress has to look at every category of information every agency deals with and make a law prohibiting the disclosure of that individual -- >> not at all. with respect to the back of argument of the government,

114(r), we have two different arguments. one is that it doesn't have and the other is that it is not specific to your hypothetical does with the first end of the second. the congress is doing the prohibiting unlike 114(r) doesn't do anything to you need regular ship with respect to specificity, i think congress has two different options. one is to pass a specific law. the opposite of specific is general and to think the words detrimental to transportation security are not specific enough. if you need any illustration of that just looked at my friend's argument in the reply brief that the chief justice pointed out where he said that you could release information about how important flights were not covered. ssi regulations flatly call that ssi material, this is 49 cfr 1520. ..

notwithstanding. it is only acknowledged them. the congress is ready to do precisely that with respect to the whistleblower notwithstanding all walls or the whistleblower protection act and pass the most general statute imaginable. >> so you want us to the cup foia. it would be okay for foia to withhold this information. do you think it's that particular type of matter to be withheld to you agree with the government that includes this kind of material? >> it may satisfy foia because of the first clause which is notwithstanding so you don't have to deal with this but here the statute doesn't say anything like that and so for that reason it was on the statute of their them to foia exemption the language doesn't talk about when

the matter is kept secret by statute as opposed to regulation was so given that it's all tied in together it's very tempting to say i will tell you when it's a statute rather than a regulation and then you go read the exemption three and save the statute when one at least no discretion on the issue or number two it establishes particular criteria or number three it refers to the particular types of matter so we look at the statute to see if it does matter. that's what i thought i was supposed to do to decide whether it is the statute that's doing it for the regulation. the one that gives me the most trouble on those three is the last one because it does seem to refer to a particular type of matter. so, in very general terms.

it so what do you think of what i've just said? >> understanding the specifics as to think about the opposite and detrimental to the security transportation yes if it refers to a particular it does refer to a particular matter and the statute is going to refer to some sort of particular matter when we think of something deeper in mind. >> i see that it quite critical infrastructure on one side of the line is on the other what about the analysis i went through is that the correct legal analysis in your opinion? who >> i think you can pick any definition. my worry and about doing it is that justice scalia was pointing out to my friend.

i think the congress is saying unlike foia, the rules and regulations do not do the prohibiting and it's only one. that's why the phrase is prohibited by law. it wasn't anything like that in foia and indeed foia has two purposes. robinson said one is to empower the agencies with nine different exemptions and follow that of the agencies. >> that is your position is that after the congress enacted statutes, anything that came within the definition could be disclosed until congress passed another statute. that's what you wanted? >> i think as long as neither has been notwithstanding clause they see them before the whistleblower protection did act or it has a specific prohibition about the specific matters to be disclosed on mike the general prohibition here the detrimental transportation that's enough but there's also a more fundamental.

>> where can i look to find examples before the regulation there with the information pertaining to airline flights that could not be disclosed. >> i am not sure but for example notwithstanding any other provision of the law withholds the public information and so that is a notwithstanding -- >> that doesn't apply to this respondent. the code violation of the matter relating to the specific danger.

people like mr. mclean. it's a responsible reporting about maintaining the close connections in the congress. suppose that instead he contacted a reporter working for a foreign state-controlled news agency and the information wasn't released to the public so that the information was out there and could have been obtained perhaps by terrorists before congress was aware of this and before the agency was aware and before it was able to take corrective action is there any reason that wouldn't fall under the statute as you understand? >> i don't belief that it deals with the fact of the congress

could circumscribe the act in various ways. one thing they did they said not just can congress pass a specific exemption with the notwithstanding clause they said the president by executive order can deal with precisely this problem and it doesn't require classification and it doesn't require the systems. make in your view of the president would get involved because of the very specific statutes. >> but they don't even get into it because it was in the regulation and not the statute and if it isn't in the statute and you don't even get into that. >> in which you have the 60,000 people that lead to the the fore in media or something like that but if the government believes they can solve that problem today by walking in the boardroom having an executive order but says the time material

like the material here that air marshal information is exempt from the whistleblower protection act and the congress passed that and as the justice says it is the way to promote accountability. they don't want the unelected agencies to guard the henhouse. >> that may be but i doubt that they thought about the situation and i'm positive that they would be content with the possibility of the disclosure that wasn't really a disclosure for the public. >> i think that they have dealt with this question about how do you need an exhaustion requirement and so on. every single time they've amended the act for times and every time they said the problem is not too many whistleblowers but it's too few. the congress recognized that it's hard for someone like other whistleblowers to go to the media because they put their job at risk committee get fired and then they have to spend years litigating as if the lid again have just to get the job back.

so of course congress can prohibit the disclosure of the information in general and they have. the question before the court here is have they done so with respect to the whistleblower protection act have they done something specific and have to deal with the whistleblower protection act and the answer to that we think is now. >> i'm concerned about your acceptance of the hypothetical that the whistleblower doesn't blow the whistle to anybody except the soviet union. do you really think that that's what this means when it says to take a personal action with respect to any employee because of any disclosure of information in which the employee or the applicant reasonably believes evidence is a violation don't you think it's implicit in that but he's disclosing it to

somebody that could remedy the problem as opposed to an enemy? >> our simple point is whatever that standard is it is a constant in this case and if the court is worried about it at all they would provide mechanisms to deal with it either specific or nonspecific and the executive order that doesn't require -- >> i am troubled because the facts are very much in your favor here because he disclosed publicly. but under your scenario or under your position if he published every day until the executive order came out, the schedule of which flights air marshals will be on and he would come out and just say i think we need more arab marshals that would not be a violation of.

>> the congress has dealt with that various points asking the question is this to lose the standard and every time they concluded not because it is hard for whistleblowers to come forward. the officials briefed us before and there have been 203 cases that have gone to the federal circuit and a favorable overview of whistleblowers. there've been 56 cases that have gone and again they have won three of them. they put all the eggs in the basket of what the whistleblower wants to think is a good disclosure. >> congress has looked at the situation and assess every time we need more.

>> people don't want to bring this up but the staff and congress do consider these problems the right thing they say what the answer is and the members are informed. now in this particular case if you happen to read the conference report, you get the answer. it says what does it mean not specifically prohibited by law and then in both the house report and the senate report, it tells you go back to what we passed two years ago, namely the exemption and that's what it means. and so, that's why i got the thought that's what it means. and once you have that, you then see that the country is not going to fall apart because they wrote in the presidential exemption as well. succumb reading with the staff actually wrote and perhaps i am biased in that respect be

leaving that the members of congress do think about these problems through staff because we have the answer to the case leaving only open whether it is specific enough or not and you make an argument that it is general. now why shouldn't i follow that approach? to make the conference report and its quoted in the briefing on page 24 this is like almost any case i've seen before in recent years. >> one is foia at the conference report. the senate report is somewhat against you because it picks up the foia were the foia exemption and says that's what this means. even though you don't want to do that. i would read all of them. >> let me address the senate report. we think even under the standard we don't think that this is a particular matter.

assuming that i follow the justices approach leading to the conclusion that the government request the need and have to disclose it because it, the statute isn't referring to a particular type of matter to be withheld, not particular enough for you. >> the language in the first notwithstanding is enough to basically just racquet with respect -- >> just answer my question, you are saying that the government couldn't withhold it under foia. it should be read with the reversal in mind.

page 154 has the text of the senate bill and it doesn't even have specifics in it so that's why we would caution against using that as the template for deciding what specific is. can i ask you how that would work out. if there's a problem in the airport where the tsa employee isn't being remedied so they want to disclose it. it has to be disclosed to people

associated in the airport to be remedied so how would that be dealt with in the executive order to say this can be disclosed to security people at the airport and the local police maintenance people how would that be dealt with. the president can pick up the system under the exemption and the foreign affairs and there are parts of the society that may not fall in it but parts like this would so the president could designate that information subject to the exception to the whistleblower protection act but it certainly could with respect to the classification regime.

my friend on the other side says we can't share information with people. as page 52 points of the classification regime is that enough to provide that as long as it is the defense of the homeland is the hypothetical. it can be modified as well. so if they really bb that you need to do this and to share the classified information with the unclear authorities they can do that. so, we are not required from the specificity requirement either in the executive order or in the congressional solution so that it's every job or everything like that. if classified information. you are saying don't use the

revised exemption standards. 14 r. is narrow in that. so all of the exemption cases eventually become irrelevant. is that right? and you're doing that based solely. >> i think that if you adopted the foia standard i still think that this language that is detrimental to the security transportation is so capacious heaven knows what it means and he thought that what he was doing was the motion of the national security not detrimental. >> in the general language it is absolutely true you might say that as a general language but we are not on a clean slate and all of the exemption cases seemed to suggest that the language can meet the bar. so i am looking at this statute

that prohibited the disclosure if it wasn't fair in the circumstances and reasonably related to the purposes of the consumer product safety act and we said that was enough. you look at it and say why was that not enough. >> the context is a very different than here because it's something about and how warring agencies to restart disclosures that wanted to keep in place the disclosure. the act has the reverse idea. between the rule and the regulation and the law is prohibited and that the congress has has by that phrase in the context of the statute is about empowering the general language

there are two boxes in the chairman told to the foundation sounds very much like the mission statement and not anything more than that. >> if the congress wanted to reach your position and the choice of the words that were used in the second part of the statute as a statute instead of law to come out the same way? and there would really be no difference. >> it would be a difference in a supported language that says we didn't use the statute for a particular reason because they wanted to sleep and not simply the statute in the u.s. code but also the judicial interpretation. >> i'm sure that's what they all

had in mind. [laughter] >> i think it is with the congress said into the congress votes on. it's the chief justice pointed out. the whole house, each separate house? >> the answer to that is yes but i would also say the other thing about it is that i do think that the congress actually what they were saying in the report made sense because the language is specifically prohibited by law and i think that with the congress was trying to do is sweep things in like the trade secret act even if the language might look general to an observer the words have been fleshed out. >> maybe this doesn't make sense but you have been focusing on the material that is covered. can't it also refer to the

prohibitions specifically prohibited in other words actually has to say you cannot disclosed this you think that it is just specifying what this is. couldn't it could it equally be well specified how direct it must be specifically prohibited? spank this is the argument that comes up for the first time and it's never been advanced by anyone there is no support for it in the undecided history or the text of the statute. i think it specifically refers to such disclosure that it's not specifically prohibited by law so i think specifically as it is best read is referred to such a disclosure. justice breyer, you are asking about when earlier. it's important that i say that the court when they passed to the whistleblower act rejected the idea that 102 -- >> i think i'm talking about the report on the whistleblower act and the report on the

whistleblower act that came two years after, the senate committee said those disclosures which are specifically exempt from the disclosure by the statute which requires the matters are held from the public in such a matter as to leave no discretion on the issue or by the statute that establishes criteria or refers to the particular types of matter that were withheld. that is word for word. did they vote on the senate committee report? >> justice breyer, the bill that the language is interpreting doesn't even have the word specific in it so the bill of the senate is using page 154 in that report and it doesn't have it in that and that's why they don't think that it's the best guide for what it means. now the language as you say about 102 d. three meet the

specific prohibition and section 2306 of the actual whistleblower act with justice scalia the congress voted on xm's 102 d. three. they didn't buy the argument that the government has come up with right now that says that the senate report means that 102 d. three because they added this language so no provision of the chapter shall be construed to the authorities and responsibilities set forth in section 102. so, the congress itself didn't believe the notion that it was the specific. >> you might be right about that but offering the general question of driving to the interpreted wage between the exemption into the whistleblower act that's going to get everybody good and mixed up i think.

>> was in your opinion is the wise way to go about it? assuming this statute isn't specific enough which is a better way to go about it to say the whistleblower act as special or tuesday interpreter both alike. >> either is plausible because they are different statute and it is set that we have two goals and one is about the agencies here nobody has said that and it never refers to an power empowering the agencies that the justice said in the congress with respect to the whistleblower act is concerned about incentivizing them to come forward and that is what the members said as well as the office of the special counsel brief. there is no brief -- >> does that suggest that we take the same language and read it in two different ways depending on the sense of the purpose of the undermining statute is that right?

>> i think that is available to the court but again you can use the standard and there is no way -- >> that if the decoupling argument is essentially based on the notion that these two statutes have very different purposes and therefore we can take those different purposes and read a very similar language differently. >> of course it bothers to specify notwithstanding and then it goes through the detriment of the security and it doesn't specify the whistleblower act. congress can deal with this by having a more general -- >> i thought you were relying on the difference of the law. >> absolutely. so, that is our primary argument. >> thank you. [laughter] >> if there is nothing else for --

>> thank you, counsel. >> thank you mr. chief justice i would like to make two points. first the principal quest and we would like the court to decide is whether it is best prohibited by statute. i think it's interesting today that the justice, you pointed out that the precedent seems to require that and justice breyer you pointed out the history in the senate report seems to require that result. justice alito and justice kennedy you pointed out the practical effect of the respondent's position would seem to be agreed and mr. chief justice you pointed out and we come playfully agreed it's critical to the argument and it could just as easily and properly be expressed which is what it means here and the justice asked about criminal penalties but the statute itself doesn't provide the penalties but it does provide civil penalties. we think in a situation where we

had the prior case law, the practical effect and plaintext to say that a statute that mandates nondisclosure regulations does not specifically prohibit disclosure is a very odd construction. the principal practical arguments that we have heard today are we don't have to worry because congress could have had an executive order to make it work. we think there is no dispute the system doesn't work under the construction. the idea that with the congress expected was a duplicate of order to mimic this scheme seems very odd to us and like it very odd way to construe the congressional statutes. there is a concern that there is a fox guarding the henhouse and that may be a concern with the whistleblower protection act but it has no application here where the congress itself mandated the nondisclosure regulations and did so knowing precisely what those regulations were when it

did so. finally, there've been some suggestions that the facts are in the theater here. i would only say this. what the tsa employee has before them is not a full picture of the threat. it isn't a full picture of the resource constrained constrained constrained and it isn't a full picture of the other means that the agency is taking. and it isn't possessed with the same experience that tsa has. >> you were -- i assume that if we look at the friend on the other side, the s. s. i regulations are not bowl and void. they would still apply to everybody except for whistleblowers isn't that right? they would be a violation for anybody to make those disclosures unless he is doing it in a whistleblower capacity. >> yes, your honor that the standard of whistleblowing is do you reasonably bb that there is a specific danger to the safety.

it's readily ascertainable and it isn't a judgment made in the full picture of the security consequences of it i suggest to the court court as we step back the right way to think about the case is that in a situation where the statute mandates nondisclosure just as the chief justice were to tell the marshal to borrow me from the courtroom that it would be perfectly reasonable to say the chief justice had expressly prohibited by the president in the courtroom even if the marshal rule for understanding. ..

>> he wasn't talking about you. >> thank you, counsel. the case is submitted. >> a live look at rayburn house office building on capitol hill where house foreign affairs subcommittee will be holding a hearing today on the future of energy in africa. we'll hear testimony from officials with the state and energy departments, as well as agency for international development. some 30% of global oil and gas discoveries over the past five years have been in sub-saharan after from. -- africa. the hearing was scheduled to start noon eastern time. it has been put off a bit.

we expect it to get started in the next 15 or 20 minutes or so. right now subcommittee members are votings on the house floor on the first of a couple of votes on the keystone xl pipeline, a measure introduced by representative bill cassidy of louisiana, who is in the midst of that runoff race with senator mary landrieu, who also pushed for and got the senate to schedule a vote next week on the keystone xl pipeline. so, when house members get finished with those votes on the floor, we expect this hearing to get underway. the house foreign affairs subcommittee meeting on energy in africa today. while we wait for it to get started, a briefing from the pentagon today. defense secretary chuck hagel announced today that the pentagon will make upgrades to the nation's nuclear deterrents program following reviews that uncovered systemic problems in the system ranging from officer training to weapons security. we'll show you as much of this as we can until the house

hearing on energy in africa gets underway. [inaudible conversations]. >> health of the nuclear enterprise focusing on

personnel, training, testing, command, oversight, mission performance, and funding. this morning with me here on the stage are individuals who have played a particularly important role in these reviews but probably most importantly, they have the responsibility to carry out the recommendations that came from these reviews and i, i believe you know that, after i leave this morning the deputy secretary, bob work, and others here will stay on the stage and answer more specific questions. but i want to thank secretary work, admiral, thank you very, very much for what you have done as vice chief of naval operations because your component is critical to this. admiral haney, thank you for

your continued leadership at stratcom. your component also is an integral element of our strategic forces. our secretary of the air force, secretary james, who will be leaving with me right after this news conference and we'll go to minot air force base in minority, north dakota, and spend the day, for your continued leadership. general wilson, thank you for what you do with your force, and with your team. these individuals as well as other leaders have all been integral as i said to what we're doing and, the internal review, part of this. our internal and external reviewers, visited all of our domestic operational nuclear bases and many of their key support facilities.

they interviewed hundreds of personnel officers, civilians and contractors. the review team leaders, from the external review part of this, are with us this morning and i want to particularly thank admiral harvey and general larry welch, and madelyn kratin for your leadership. madelyn headed up internal review and general welch and admiral haney headed up the external review. the work they put into this, the dedication, literally hundreds of hours was pretty spectacular. to all of your teams and those that supported you, we're grateful, thank you. today i'm announcing the results of those reviews. the actions that dod has already

taken to carry forward and carry out the recommendations of those reviews. and the actions we are in the process of taking, to address the reviews findings and insure the continued safety, security and effectiveness of america's nuclear deterrent. first i want to be clear about the importance of the defense department's nuclear mission and its role in defending our nation. our nuclear deterrent plays critical role in assuring our national security and dod's highest priority mission. no other capability we have is more important. our nuclear triad deters a nuclear attack on the united states and our allies and our partners. it prevents potential adversaries to try to escalate their way out of failed conventional aggression. it provides the means for effective response, should deterrents fail. consistent with president

obama's guidance, our policy is to reduce the role of nuclear weapons in our nation's security strategy. and, to seek the peace and security of a world, without nuclear weapons. we'll continue to do both. but that doesn't diminish our responsibilities. as the president has made clear, as long as we have clubbing clear weapons, we will, and we must, insure that they are safe, secure, and effective. dod senior leaders and i are in full agreement. we're in full agreement, that today america's nuclear deterrent remains safe, secure and effective. that is thanks to the heroic efforts of airmen, sailors and marines who, despite sometimes insufficient resources and manpower, stretch themselves to maintain and guard and protect and freight the nuclear enterprise every day.

however the internal and externly r ternnal reviews i ordered show consistent lack of investment and support for our nuclear forces over far too many years has left us with too little margin to cope with mounting stresses. the reviews found evidence of systemic problems that, if not addressed, could undermine the safety, security and effectiveness of the elements of the force in the future. these problems include manning, infrastructure, and skill deficiencies, a culture of micromanagement, and overinspection and inadequate communication, follow-up, and accountability by senior department and nuclear enterprise leadership. the root cause has been a lack of sustained focus, attention and resources, resulting in a pervasive sense that a career in the nuclear enterprise offers too few opportunities for growth and advancement. i know this from my many

conversations with personnel in the nuclear force. for the past several months dod has been taking action to resolve the key problems and implement more than 100 recommendations from the internal and external reviews. some of these recommendations involve changes in organization, policies, and culture. others require an increase in resources, allocated to the nuclear mission. we must address all of the underlying problems. let me begin with the many steps we've already taken, starting with improving oversight. first i establish ad nuclear deterrent enterprise group which brings together entire senior leadership of dod nuclear enterprise, not only from here at the pentagon and strategic command in nebraska and air force global strike command in louisiana. previous reviews of our nuclear enterprise lacked clear follow-up mechanisms.

recommendations were implemented without the necessary follow-through to assess they were implemented effectively. there was a lack of accountability. to finks that i have directed our analysts in dod's office of cost assessment and program evaluation to track both the status of the actions we're taking, the progress we're making, and the impact on the health of our nuclear force of the we will need to know what's working, and what's not. each month they will report their findings to deputy second tar work, who i asked to help lead this effort as well as other members of the review group who will all report to me approximately every 90 days. i will hold our leaders accountable, up and down the chain of command. to insure that words matched with actions. we must change the cultural perception of the nuclear enterprise which has particularly suffered in the air force. we must restore the prestige

that attracted the brightest mind of the cold war era. so our most talented young men and women see the nuclear pathway as promising in value. that's why i granted the air force authority to elevate global strike command to a four-star billet. and the air staff's head of strategic deterrent and nuclear integration to a three-star billet. they will no longer be outranked by their non-nuclear counterparts, giving the nuclear air force the second to none leadership it deserves. last year secretary james, who has been a tremendous leader on this issue, personally award the first 25 nuclear deterrents operations service medals, a new medal, created to recognize the critical contributions that our nuclear force airmen make to america's security. cultural change must permeate down to the individual. with every airman in the nuclear enterprise knowing how much we

value them and their service. we already are starting to match needed leadership and oversight with much-needed investments. earlier this year the air force established a force improvement program for global strike command. and reallocated over $160 million in fiscal year 2014. and 150 million in fiscal year 2015, to address the most urgent short falls in equipment, facilities and manning. some of this will fund incentive pay for critical nuclear assignments. helping to retain our best airmen and keeping our focus on what matters most, our people. the air force has exempted 4,000 airmen from manpower reductions. while adding over 1100 billets to forces under global strike command to fill gaps in operations, maintenance, security and other critical areas. our efforts must be sustained

over the long term. which is why we are in the process of doing much more. dod will soon finish updating and standardizing how we conduct eninspections and elevate our personnel across the nuclear enterprise, eliminating micromanagement, redundancies and administrative burdens that overtax the force and ultimately harm the mission. the navy is reducing administrative distractions and is planning to hire more than 2500 workers and overall aging infrastructure at public shipyards. strategic weapons facilities and reactor training systems. meanwhile the air force is planning construction to improve weapons storage facilities. it will replace helicopters for the ballistic missile security forces and is in the midst of revamping how it trains, evaluates, and manages the nuclear force. both services are elevating and

reinforcing the nuclear mission. including in the budget request they're preparing for fiscal year 2016. we will need to make billions of dollars of additional investments in the nuclear enterprise over the next five years. this new funding which will be detailed in our budget submission next year will be critical improving up keep and security while addressing short falls that undermine morale in the nuclear force. there isp more we need to do leading up to the nuclear modernization program in the next decade. over the last year i traveled to see missile areas at air force base in wyoming, and called launch control officers underground at melstrom air force base in montana. i visited the nuclear weapons maintenance in new mexico and officers at air force base in omaha. met with sailors on the

ballistic missile submarine, uss tennessee in kings bay, georgia. right after this press conference as i noted. secretary of the air force james as i noted will leave for minority air force base in north dakota, to meet with missileers and bomber crews now stationed there. my message to them today and to their colleagues across the military is i am simple. other nuclear enterprise is foundational to america's national security and resources and attention we commit to the nuclear force must reflect. that we need our best people in this enterprise. i will now take a couple of questions before secretary james and i leave. and as i said, this team will stay behind and answer further questions that you may have. rita. >> mr. secretary you talked a little bit accountability. as you know several years ago secretary gates fired people and did similar reviews of the

nuclear force, who, where is the accountability for the failure to, i guess improve and take the steps that were needed over this time? it has been quite a while, with steps that haven't been taken to do what was needed to improve the force. where is the accountability for those who didn't take those steps? just a quick question on the money. talking about billions of dollars. can you narrow that down a little bit, about how many billions of dollars and and is it being shifted in the air force budget or additional you will have to seek from congress? >> well, on the, on the budget issue let me address it this way. we'll get into obviously as i said the specifics on how much and where, and all that will be laid out in our budget that we present to the congress earlier this year. but over the next five years,

future, the fiscal year is how we present our budgets, we're looking at 10% increase in the nuclear enterprise over each much those years. right now we spend about 15 to 16 billion on our nuclear enterprise. so if that gives you some kind of range. on the accountability eshoo, there are already has been accountability. in a number of instances in specific areas as we are holding people accountable. there will be more. as i said, here in my remarks and i think backgrounders most of you received yesterday, this is also a process as we work our way through. accountability as we restructure. again i go back to a comment i made.

i know secretary james feels strongly about this, our air force chief of staff general mark welch does, all our leaders do, accountability is key to everything. it's critical. you can have the structure. you can have the process. you can have the resources. but if you don't have the accountability it will unwind. so everyone held who is holding today responsible positions -- by the way, this cuts across all lines. it is not just the nuclear enterprise, it is all this institution, who holds responsible positions is accountable and will be held accountable and. we will continue to make the adjustments where we need to make them. >> mr. secretary? >> david. >> we're told one of the things one of the panels found was there was a situation where there was one copy of a wrench needed to attach warheads to the missiles.

one wrench, 450 missiles at three bases. is that true? and if so, how did the, how did the air crews manage with just one wrench? >> well it is true and i think it is indicative, david, of the depth and width of what, has happened over the last few years. as i said in my statement, a lack of focus. little attention to some of these specific areas. it wasn't just resources. partly it is cultural. as i have noted a number of things, people taking their eye off of the ball a little bit, recognizing, it is important i think, especially for the american people, that this did not affect safety, security and

effectiveness of our nuclear weapons. as you know we're talking about delivery platforms be as opposed to nuclear warheads. but, your point is exactly right because it's reflective and indicative of a system been allowed to kind of slowly backdown hill that we have seen in the reviews as result of intense reviews internal and external, these kind of things which you mentioned about the wrench come out. now how did they do it? they did it by federal expressing the one wrench around to each base. they were creative and innovative and they made it work but that is not the way to do it. we now have a wrench for each location. we're going to have two wrenches for each location soon. so but that is one of many of the issues and -- issues and

problems that we found. >> one follow-up question everybody is asking. what happened to your cheek? >> well i had an incident with a cabinet door in the kitchen. i know that is, i know that is not an exciting story but depends on the audience as to what i tell people. but, i have thought over the years always better to tell the truth. so that's what happened. i engaged a, the corner of a cabinet in my kitchen and, it didn't turn out well for me but it is going to be all right and no stitches and it all heals and but i have had more bandages than this on my face in my career and been in tougher spots. >> a bad cabinet meeting. >> you all are too clever. i wish i would have thought about that line but that's, i'm sorry not to make it more interesting but, actually

general dempsey asked me when he came back what happened. and his response was, that is not very interesting, the explanation but -- i will take one more and then we've got to go. >> mr. secretary, over the years we heard very similar words from your predecessor. how do you convey to the american public that this time will be different? each time we've heard you know, we're going to make the nuclear enterprise -- is this because the nation's been at war and there hasn't been enough bandwidth and officials have been diverted in their attention? how can you explain that this will be different this time? >> well, i think it is, all of the things you mentioned and number of things that mentioned in my statement. let's start with what this enterprise has been focused on mainly, the last 13 years, two

large ground wars. and when you have that situation, when america has been at war, and has had large numbers of troop commitments in those two wars, when a nation is at war, that's a focus. that isn't the only reason i think this nuclear enterprise has been kind of allowed to back downhill a little bit. it is that. it is, not paying attention where we should have in some areas. our young people we rely on, we rely own all of our people. the quality of the people of an institution is the institution. and, if, if career paths are blocked or seen as not conducive

to promotions and young people with a lot of focus and commitment, where they want to go with their lives and commitments and, if they see that not as a very attractive way, that's going to get them to where they want to go. that is going to affect where we are. i think too, the good news about this is, there has been no nuclear exchange in the world and, that is the whole point of deterrents. that is the reason this triad system is so critical for our security. and i think, there has been, nationally a sense of just taking it for granted. so what? there is not going to be a nuclear exchange. the big problem is what is going on in the middle east, north africa, terrorism, al qaeda.

the wars, that is the threat to america. yes, that's a threat to america. it still is. but, we have, just have kind of taken our eye off the ball here. so i think this is, this is the right time to have this reassessesment, this review. the seriousness of this issue has always been there. i don't think anybody, anybody has diminished the seriousness of a nuclear threat but i think it is those things and many other things. the good news is, there is nothing here that we can't fix. the good news is, that none of this is endangered america, americans, or put our security at risk. that is all good news. but, if we don't pay attention to this, if we don't fix this, eventually it will get to a point where there will be some questions about our, about our security. so that is all the good news. and, it is just, i think, it is

not unlike institutions and in life and in the world. we've got so much going on in the world and so many new threats. there is convergence of challenges and threats in the world i don't know if my lifetime i have ever seen it. all you need to do is your business records it every moment of every day. and it is all coming at us at once. we have to manage this but we can't lose sight of a long-term either. at the same time, we manage through these crises and we lead through coalitions and other means but we've also can not take our eye off the ball -- >> let me begin by apologizing for the lateness of convening this hearing. we did have votes on the floor and members are making their way back and i appreciate the patience of our witnesses and guests n a 21st century energy has become vital to modern societies. we all know that. we no longer have to shop for food each day because refrigerators keep food cold and

preserve longer. whether in homes and restaurants during the process of trade, cell phones, computers, television and other electronics require electrical power to allow us to lead more productive lives in the modern world. as we've seen even in the ebola crisis and epidemic it is necessary that medicines and plasma be kept cold so they don't lose their potency. both unfortunate and absolutely unnecessary that more than hatch a billion africans, especially in rural areas, live without electricity. perhaps the great irony is that africa has more than enough energy capacity to join the rest of the world in utilizing modern technologies that require energy supplies. pl 30% of global oil and gas discoveries of the past five years alone have been in sub-saharan africa yet currently only 290 million out of 914 million africans have access to electricity and the total number lacking such access

continues to rise. bioenergy, mainly fuel, wood, charcoal is still a major source of fuel. hydropower accounts for 20% of total power supply in the region but less than 10% of its estimated potential has been utilized. this hearing today will examine the current and prospective impact of u.s. government programs, such as power africa and electrify africa as well as private and international energy project. i thank our very distinguished witnesses who i will introduce momentarily their leadership in the making dream of electrification of africa increasing reality. chairman royce and ranking member engle and i introduced hr 2548, the electrify africa act. this legislation seeks to build the african power sector from increased production to more effective provision of energy. 2548 passed the house this past

may but has not had action yet in the senate. days after the act was introduced, the administration i'm very happy to say announced its power africa initiative and has committed up to $7.81 billion in various types of u.s. technical and credit assistance and other aid to build the capacity of the african power sector. . .

that produce indoor pollution that all too often contributes to sickness and even death. the current situation cannot continue much longer. even with 13% of the world population to represent only 4% of the worlds energy demand for this situation thankfully is changing. according to the report by the international energy agency since 2,000 sub-saharan africa has a rapid growth and rising energy used by some 45% so that is a good trend. we often speak of the rise of the economy but for that to be truly realized it must match the growing demand for power.

so cell phones that are transforming all forms must be charged. the consumer goods come in the growing african middle class purchasing needs come electricity. africans are increasingly unwilling to accept the blackouts and power surges that have made life so difficult for so long. they know that this doesn't have to be their life in fact perhaps they've heard about power available to be available to them just like everyone else. in the industrialization that must no longer be used for a reason why they are behind in the process of industrialization or power generation. today is more to an adequate or unrealistic regulation, lack of finance for 62nd projects, under investments even when financing

is available. the power grids high-cost for energy and other factors. these obstacles can and must be overcome and they've require additional international collaboration, public-private partnerships and the will of government other citizens. we will not get to the point that we believe it is necessary over night but we will get there if we do it to take serious measures now and work to bring this down. with regular electricity, young students will be able to study under electrical lights but also use computers to advance their studies. filmmakers will keep food fresh or what refrigerators and stretching them further and hospitals i've been in, the chief of staff for the committee we've been in so many hospitals where the generator would keep

the supplies cold as they must remain so. they will achieve power in africa in private projects in the supply and energy in africa is brighter and it has been with diligent efforts that we need to see today. so i now yield to my good friend for any comments he might have various >> thank you mr. chairman and your leadership when you say the prospect of energy in africa is brighter in large part because of the relentless leadership so i want to thank you and the reading number for your work and for the hearing and think the witnesses for being here today. it's obvious that the lack of power is able as many negative consequences and constrains economic growth and undermines the resource development and hinders the quality of life

progress and in particular the quality of social service so the impact both on the economic prosperity as well as its ability to meet many of the urgent challenges by the lack of energy and this will give us an opportunity to really assess the perspective into the current impacts of the power and electrify. now to the ranking member. >> i tell you on several accounts and occasions in the public of congo i contracted and unwanted visitor in my body and had to go to the hospital and that's when i found out the need

for refrigeration and the need for antibiotics and actually started my journey into trying to shift antibiotics and other medicine was my own personal experience having none and the importance of energy into the importance of having -- ironically here's a country the republic of congo producing quite a bit of illegal that they didn't have enough at the time i think someone donated lights to them and they didn't even have enough to generate electricity. they fill little coke bottles full of gasoline and kerosene. here is a country that is of great natural wealth and get its own people are very poor and restrictive in terms of what they can get and it is mind boggling and i know that a being

from texas some refineries in my district have the gasoline in the united states and i was marveling at the lack of infrastructure for the ability to harvest their own oil for their own needs and so i've always been interested in what a country is in africa versus what it needs and the outcomes of when you don't have that infrastructure and you don't have that ability to refine and it's unfortunate. i know that there is a great deal of what people would call corruption but on the other hand the lack of knowledge and how to take the natural resources and make sure that it benefits their own people. and it's kind of sad to see that you have great wealth and great poverty and little electricity. the year that i went back i had the french had donated to these lights or solar powered lights so that when you drive down the

road now at least you have street lights and their individually ironically powered by the sun. but the time before that i was driving down and there were lights from the car and you could see all these people walking down the streets and the only lights they had were a little bit alarming and i think that is why this hearing is important and that's why we need to use it in their own countries i would like to yield to the distinguished member of the committee. >> thank you very much especially on the leadership of calling this particular hearing. you and i have worked a long time on this issue and we are clear in our understanding that one of the most important needs on the content is building the

infrastructure supports the type of trade that you and i would love to see happen can take place. i want to think that distinguished witnesses including the senior u.s. government officials from the state department, usaid and the u.s. doe as well as experts in the civil society. i look forward to hearing the perspectives on the challenges of energy resource development in africa including an assessment of the economic national security and human development aspects related to the energy sector. we know president obama doubled access to electricity and the duration of the power source to provide more than 10,000 megawatts of electricity and increase access to at least 20 million more households and businesses. additionally, during this historic u.s. africa leader summit in august of this year that you you like to vacation in africa was a central point of discussion with african heads of

state. in the midst of peace talks president obama announced a further commitment of $300 million to the power africa initiative. in this new commitment it would increase the initial pledge of 10,000 megawatts to 30,000 megawatts and the hope is that this creates an opportunity to reach up to 60 million households and businesses. so, based on these early successes it is critical that we continue to invest in initiatives that bring increased electricity to the african continent. that's why i was proud to join the chairman as well as the ranking member to introduce the electrify africa act and we are hopeful that that will move forward in the senate so i look forward to today's testimonies and i'm interested in what's more congress can do. i would like to introduce the three distinguished experts all of whom have made major contributions in the past and

present who can speak to the subject so we thank you for being here. having previously served as the principal deputy assistant secretary for the office of the policy and international affairs from nine to 2013 prior to joining the energy department he worked as a senior fellow at the brookings institution focusing on energy security and other foreign-policy issues. they served on the staff of the national security council and in a variety of other positions working in the united states at the u.s. department of energy and the council on environmental quality. we will then hear from eric began at the assistant administrator for the bureau of economic environment and in march of 2011.

they asked the administrator to serve. he brings to the position more than 25 years of the private sector experience working in the emerging markets especially those in africa he is also founded an investment banking and consulting firm focused on emerging markets and served as a commissioner of the u.s. helping to enhance the likelihood and worked for citibank in tokyo. and we will hear from the doctor that serves as the deputy assistant secretary in the energy resource. he's responsible for voting on the transformation of energy systems to achieve greater efficiency and performance through the use of market forces and innovative financing that leads to the efforts to reform electricity power systems and develop more reliable national and regional electricity markets.

he is a long history of u.s. government service in the energy field having worked for the energy research development agency, the u.s. department of energy and usaid. so thank you for being here today. >> good afternoon chairman, ranking member and members of the subcommittee i'm pleased to be here to testify on behalf of the u.s. department of energy on the energy in africa. the department of energy international affairs focuses on some of the world's most pressing global energy challenges from promoting energy security to foster international collaboration in science and technology from addressing the market volatility to facilitating long-term efforts to mitigate climate change. we work to leverage the expertise of the department of energy headquarters and the national laboratories in energy technologies, markets and

policies so in that context i'm very pleased that the interest of the subcommittee and propose to sketch some of the major contours in those markets and the department activities. africa as the chairman noted has experienced rapid economic development, sub-saharan africa is the second greatest region. the world reports the growth rates in sub-saharan africa continue to rise and forecast of 5.2% for the current year. many african nations are positioned to become increasingly important both as energy consumers and producers. the international agency into the report estimates that the sub-saharan african economy will

quadruple in size growing by 80% between now and 2040. even with robust economic energy development in the coming years they will meet the needs of the people unless they can find new policies, technologies and investments most importantly to spur sustained energy development. while 950 million people in africa will gain access to it over half a billion will still lack. if i turned to oil development in africa it has long been an important player in the global market and its role will only grow in the coming years. production in the region has doubled since 1990 and accounts for 6% of the production and sub-saharan africa accounted for

almost 30% of the discoveries of the last five years. sub-saharan africa is projected to grow from 5.3 million in 2013 to approximately 6.2 per day by 2020. at present more than 80% of the production is exported that with economic growth, driving demand for oil we expect it will shift to greater domestic use. on the national gas front of major discoveries are generating excitement in the global markets and will provide fuel for africa's growing economies. among the countries with the most important emerging gas developments are tanzania, uganda and madagascar are where there've been major steps made towards commercial development of newly discovered resources in the recent years. in the power sector

electrification rates in sub-saharan africa unfortunately they are among the lowest in the world as it has been noted. north africa has electrification rates of over 99% of meaning 620 million people lack access to the modern services. and as the chairman noted this translates into very concrete impacts on people's livelihoods and their lives. so with this context when president obama underscored the commitment by launching the initiative he also asked for the engagement and so in june of this year the secretary together with his ethiopian counterpart the minister of energy and water can be in a u.s. africa

ministerial. it drew together 500 participants, 42 african countries, all of the relevant pieces of the government and 20 ministers from northern and sub-saharan africa and both african and u.s. companies along with civil society, academia and other organizations. we focused on clean energy focus on clean energy technologies, increased power generation, electrification and regional power poles and the requirements for finance. in the wake of the african ministerial the department of energy is working with the leading economies to help them meet their development goals our laboratory is working with the ministry of energy and water to

deliver train the trainer programs which will help to make available more instructors and technicians to develop photovoltaic systems. into a rehab energy efficiency pr working with a number of countries through the economic community of west african states to develop an efficient policymakers to box. this will bring together information on standards and labeling and can help raise energy efficiency across that region in. in the natural gas arena in addition to working with the government of tanzania to develop natural gas training for university students and government officials by counterpart, the acting assistant secretary for fossil energy will travel to the series

of sub-saharan african countries in early 2015 in order to engage on the policy environments that are taking shape in some of these critical frontier countries. the department of energy has a strong interest to forge closer links between and among the counterpart agencies and african governments and we also feel it absolutely essential in of the investment needs to work very closely with u.s. companies. we bring to the table particular expertise in regards to energy technology, markets and policies and we view this as a strategic opportunity for the united states come up with the companies come a companies, and also for our partners in africa. so the bottom line is energy is the cornerstone of an african strategy for poverty reduction and economic growth where my colleagues on the panel are more

expert. the doe recognizes economic growth is closely intimately linked to the availability of energy services to meet the needs of african companies and citizens. that is why we are working with private sector and public sector partners both in the united states and across africa to help them unleash its full energy potential for the benefit of african citizens and also for the benefit of the united states. thank you for the opportunity to be with you today. >> members of the subcommittee thank you for the opportunity to appear before you today. president obama's initiative and the leadership of the congress including members of the subcommittee highlighted the extent to which we are all united in addressing one of the core obstacles to africa's

development, the lack of access to electricity. as all of you have noted within enabling policy environment private sector will not invest in the african economies and without private sector investment, local economies, entrepreneurs and citizens cannot thrive. power africa, the whole of government effort by a dozen u.s. government agencies is working to address this obstacle more than 80 have committed to invest over $20 billion in the power sector development. power africa has already helped close deals that will generate more than 3,000 megawatts of energy providing power for more than 5 million african homes and businesses. for example with our support the nigerian government privatized five generations and ten distribution companies. these companies in addition to other planned investments and

privatizations are expected to produce 8,000 additional megawatts of power in the coming years. at the same time another member of the power africa team committee overseas private investment corporation has already connected to the co- committed $410 million in financing and insurance to private sector partners projects. for example, it's $250 million financing for the windfarm in northern kenya will become the continent's largest wind project when it is complete. power africa focus countries committed to undertake tough policy reforms in their energy sectors. they have $498 million in the electricity sector. this includes the tough policy reforms needed to create a viable sustainable energy sector

in order to stimulate private investment. africa has been able to cut a life commitment in excess of $4 billion for the development of their energy sector. power africa's success extends to u.s. companies as well. for example, general electric is one of the companies making commitment in the situation that i just described. as another example, during meetings in a nigerian trade mission to the united states that was hosted by the u.s. trade development agency these discussions enabled the company based in liberty lake washington for nearly $400,000 to nigerian distribution utilities and they are discussing right now and other order of upwards of $2.6 million. there is a sponsored follow-on

activity plan expected to lead to more sales. power africa is also facilitating investment in the small-scale energy solutions that are so crucial to reaching the rural communities with no access to those national grid. the development foundation and its partners chose 22 winners of power africa is off grid challenge. a competition that promote innovative solutions for off grid energy. in another small-scale projects with an outside impact and an example of something that one of you mentioned, power africa is funding the procurement of generators for a treatment unit and other facilities in liberia that will power water pumps, lights and even the washing machines used to clean both workers and hospital scrubs. some of these basic building blocks that we need to help feed

this epidemic at its source. at this year's african leaders summit as mentioned, president obama renewed a commitment to the commitment to the initiative and pledged to seek a new funding level of up to $300 million in annual assistance to expand the reach of power of africa across the continent and in pursuit of the new aggregate goals of 30,000 megawatts of additional capacity, thereby increasing access if we hit that goal by up to 60 million households and businesses. other partners also seize the opportunities in the summit to announce major new commitments to power africa. today as it is noted, $600 million have access to electricity. together with our partners in africa and other donor nations into private businesses, power africa is working to greatly increase access to reliable

clean air energy. thank you mr. chairman, ranking member and members of the subcommittee for your report and your leadership of this very important initiative. i look forward to your questions today. >> i would like to now yield. >> think you transmit and subcommittee members. i appreciate the opportunity to discuss the energy future and how we are using our foreign policy tools to support stability and economic africa to increasing access to the groundwork for the stable energy sector. i'm here representing the bureau of energy resources at the state department that focuses on the energy equities around the world and seek to elevate and integrate. first i would like to thank the house for house for their intention to the issue of

electrician power as demonstrated through the africa act. clearly africa is going through a historic transformation in the state department's bureau of resources is working hard to help african governments responsibly is a lot their convention a and renewable resources. and to accelerate the reform of their electricity systems. which will then encourage private investment, support economic growth and increased electricity access. within our interagency team and i should say we have a very strong energy agency team about one of the strongest in my 40 years of government working on these issues. within a framework of the energy bureau has focused on three main areas. one, promoting good governance as it relates to managing oil and gas resources, but this is also very important for the electrical sector as well. increasing access to electricity and increasing the use of renewable energy technologies. once returned to governance.

governance and transparency are the key security as well as economic concerns. poorly managed resources can stifle development and the corruption. with the goal of helping the companies avoid these issues the energy governance capacity initiative offers them on the ground of technical assistance and training in the region and in the united states. on some of the most difficult issues facing the sector. for instance management of revenues and corporations and best practices into the law and regulations, protecting people from the sector impacts. another program we are engaged within liberia, sierra leone, so malia, tanzania. the large offshore gas discoveries in mozambique and tanzania which we are all aware of has global, regional and national significance and we have been working out ways that

we can ensure the sound development as the resources are developed. transparency is a key component of good governance and we are actively involved in the extracted industry transparency initiative. to support transparency and management of natural resources. through the civil society they work together to produce reports that disclose information about a country's natural resources and it was allowing the citizens to see how much the natural resources are worth and how they are used. currently there are 18 countries in africa that are compliant and four of them are the candidates countries. we have heard about the extent of the poverty in africa and we are not only working through power africa that we are involved and the multilateral efforts such as sust